Summary
The Nevada Supreme Court held that the district court erred by determining without an evidentiary hearing that Sha'Kayla St. Mary was merely a surrogate and lacked parental rights. It held that Nevada law does not preclude a child from having two legal mothers and remanded for an evidentiary hearing concerning St. Mary's parental status. The court also held that the parties' same-sex co-parenting agreement was not void as an unlawful surrogacy agreement or against public policy, and directed the district court to consider its enforceability if both women were determined to be legal parents.
Topics
Practice areas
Questions Presented
- Whether the district court erred by determining without an evidentiary hearing that St. Mary was merely a surrogate and had no legal parental rights.
- Whether Nevada's Parentage Act permits a child conceived through assisted reproduction to have two legal mothers where one woman provides the egg and the other gives birth.
- Whether the parties' co-parenting agreement was void as an unlawful or public-policy-prohibited surrogacy agreement under NRS 126.045 (2009).
- Whether the district court was required to consider the co-parenting agreement in determining custody if St. Mary was found to be a legal mother.
Holdings
- The district court erred by determining, without an evidentiary hearing, that St. Mary was a surrogate lacking legal rights to parent the child. Because St. Mary gave birth and the parties disputed whether she intended to be a parent or merely a surrogate, the court was required to resolve the factual issue through an evidentiary hearing.
- The Nevada Parentage Act does not preclude a child conceived through artificial insemination from having two legal mothers, including where one woman provides the egg and the other gives birth.
- The 2009 order recognizing Damon as the child's biological and legal mother did not resolve or negate St. Mary's potential parent-child relationship.
- The co-parenting agreement was not a surrogacy agreement within the scope of NRS 126.045 (2009) and was not void as unlawful or against public policy.
- If the district court determines on remand that St. Mary and Damon are both legal parents, it must consider the co-parenting agreement and its enforceability when determining custody. The agreement cannot be disregarded merely because the parents are of the same sex.
Key quotations
“The Nevada Parentage Act and its policies permit a child created by artificial insemination, where one woman had her egg fertilized by a sperm donor and implanted into her female partner, to have two legal mothers.” (129 Nev. at 660)
“In the event that both parties are determined to be the child's parents, nothing in Nevada law prevents two parents from entering into agreements that demonstrate their intent concerning child custody.” (129 Nev. at 665)
“When a child has the opportunity to be supported by two loving and fit parents pursuant to a co-parenting agreement, this opportunity is to be given due consideration and must not be foreclosed on account of the parents being of the same sex.” (129 Nev. at 666)
Factual background
St. Mary and Damon were former female partners who jointly planned to have a child. Damon's egg was fertilized with anonymous donor sperm and implanted in St. Mary, who gave birth to the child; the parties also signed a co-parenting agreement stating that they would share parental responsibilities and decision-making. After the relationship ended, the parties disputed whether St. Mary was a legal mother or merely a surrogate and whether the co-parenting agreement was enforceable.
Procedural history
After the parties' relationship ended, St. Mary filed a complaint and motion seeking custody, visitation, and child support. The district court limited the evidentiary hearing to third-party visitation, treated St. Mary as a surrogate without resolving her parentage, denied her custody rights, and deemed the co-parenting agreement void under NRS 126.045 (2009). St. Mary appealed the 2011 order.
Remand instructions
The district court must conduct an evidentiary hearing to determine whether St. Mary is the child's legal mother or instead a surrogate or gestational carrier without a legal parent-child relationship, considering relevant evidence under the Nevada Parentage Act. If both St. Mary and Damon are determined to be legal parents, the court must consider the co-parenting agreement and its enforceability in determining the child's parentage, custody, and visitation.