In St. Mary v. Damon, 129 Nev., Advanced Opinion 68 (No. 58315, Oct. 3, 2013), the Nevada Supreme Court considered the custodial rights of a woman who bore a child created from her same-sex partner’s egg and donor sperm.

Ms. St. Mary and Ms. Damon decided to have a child together. After drafting a co-parenting agreement, Ms. St. Mary gave birth to a child through in vitro fertilization, using Ms. Damon’s egg and an anonymous donor sperm. A previous order recognized Ms. Damon as the legal mother and included her on the child’s birth certificate, and recognized Ms. St. Mary as “a mere surrogate.”

The couple separated and entered into a dispute regarding custody of their minor child. The district court refused to uphold the parties’ co-parenting agreement and refused to consider whether Ms. St. Mary had any custodial rights of their child. Ms. St. Mary appealed to the Nevada Supreme Court.

The Nevada Supreme Court held that, under Nevada law, it is possible for a child to have two mothers and the district court erred in restricting the evidentiary hearing to matters of third-party visitation and refusing to consider whether Ms. St. Mary had any parental rights. Additionally, the Court found the district court erred in barring enforceability of a co-parenting agreement on the basis of the parties’ genders because it conflicts with the Nevada Parentage Act’s policy of promoting the child’s best interest with the support of two parents.

The Nevada Supreme Court remanded the case to the district court for an evidentiary hearing on the issue of Ms. St. Mary’s parental rights. If the district court finds she is a parent of the child, the court must consider the co-parenting agreement between the parents when making its custody determination.

To read the Supreme Court of Nevada’s Advanced Opinion, visit:
http://www.nevadajudiciary.us/index.php/advance-opinions