St. Mary v. Damon
129 Nev. 647, 129 Nev. Adv. Rep. 68, 309 P.3d 1027 (2013)
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Rule of Law:
Under the Nevada Parentage Act, a child conceived through assisted reproduction can have two legal mothers, one genetic and one gestational. A co-parenting agreement between two fit parents to raise a child is not void as against public policy and must be considered in custody determinations, regardless of the parents' gender.
Facts:
- Sha’Kayla St. Mary and Veronica Lynn Damon were in a romantic relationship and decided to have a child together.
- They agreed that Damon would provide her egg, which would be fertilized by an anonymous sperm donor and implanted into St. Mary, who would carry the pregnancy.
- In October 2007, around the time of the implantation, they signed a co-parenting agreement drafted by Damon, which stated they would jointly and equally share parental responsibility, even if their relationship ended.
- St. Mary gave birth to a child in June 2008, and the child was given a hyphenated last name combining both of their names, St. Mary-Damon.
- The initial birth certificate listed only St. Mary as the child's mother.
- For nearly a year, both women raised the child together.
- The couple's romantic relationship ended, St. Mary moved out of their shared home, and they began to disagree on how to share time with the child.
- St. Mary signed an affidavit declaring that Damon was the biological mother of the child.
Procedural Posture:
- In 2009, Damon filed an ex parte petition in district court seeking to establish her maternity and amend the child's birth certificate.
- The district court issued an order declaring Damon the 'biological and legal mother' and directed that her name be added to the birth certificate.
- St. Mary then filed a complaint in a separate district court action to establish custody, visitation, and child support.
- Relying on the 2009 order, the district court ruled that St. Mary was a surrogate and limited the scope of an evidentiary hearing to the issue of third-party visitation, precluding consideration of her parental rights.
- Following the hearing, the district court issued an order in March 2011 granting St. Mary third-party visitation but denied her custody, concluding she had no legal rights as a parent and that the co-parenting agreement was a void surrogacy agreement.
- St. Mary, the appellant, appealed the district court's 2011 order to the Supreme Court of Nevada, with Damon as the respondent.
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Issue:
Does the Nevada Parentage Act preclude a child conceived through assisted reproduction from having two legal mothers, and is a co-parenting agreement executed by the two mothers to jointly raise the child void as against public policy?
Opinions:
Majority - Saitta, J.
No. The Nevada Parentage Act and its underlying policies do not preclude a child conceived through assisted reproduction from having two legal mothers, and a co-parenting agreement between them is not void as against public policy. The district court erred by concluding St. Mary was a mere surrogate without holding an evidentiary hearing on her parentage. The Nevada Parentage Act provides that a mother-child relationship can be established by proof of giving birth, which St. Mary did. It also allows for maternity to be established through a genetic relationship, which Damon has. The court, guided by California precedent and the public policy of serving the child's best interest, concluded that the law permits a child to have two legal mothers in these circumstances. Furthermore, the co-parenting agreement was not a surrogacy agreement, as it expressed an intent for both parties to share parental responsibilities rather than for one to relinquish parental rights. Public policy favors fit parents making such agreements, and they cannot be invalidated based on the parents' gender. The case is remanded for an evidentiary hearing to determine St. Mary’s parentage and, if she is found to be a parent, to consider the co-parenting agreement in the custody determination.
Analysis:
This decision is significant for establishing that, in Nevada, both genetic and gestational ties can independently establish maternity, allowing for the legal recognition of two mothers for a child conceived via assisted reproduction. It reinforces the principle that the 'best interest of the child' is paramount, which can include having the support of two loving parents, regardless of their gender or marital status. The ruling also validates co-parenting agreements between same-sex partners by treating them as enforceable contracts reflecting parental intent, rather than as presumptively void surrogacy agreements, thereby providing crucial legal clarity and protection for non-traditional families.
