Mississippi Gets Sperm Wrong
This situation should be a no-brainer after the Supreme Court's decision in Obergefell.
Twins for Ronaldo! First, I want to extend a big congratulations to famed fútbol (aka soccer) player Cristiano Ronaldo! On June 10, Ronaldo’s twins were reportedly delivered via surrogacy. Little Eva and Mateo joined their big brother Christianinho (who was also born with the help of surrogacy). Congratulations, Cristiano! And watch out, FIFA.
Now, let’s move on to less uplifting news. Earlier this month, a woman named Christina Strickland—a non-biological mother to a child conceived with anonymously-donated sperm—appealed a Mississippi state court ruling denying her parental rights. She was assisted by Lambda Legal, a non-profit group that litigates cases involving LGBT rights.
Strickland was legally married to Kimberly Jayroe Strickland Day (the “Day” was added after a subsequent marriage; I have no explanation for the “Jayroe”). The couple decided to conceive a child using assisted reproductive technology (“ART”), and anonymously donated sperm. Day and Strickland jointly chose sperm from a Maryland sperm bank, and then combined that sperm with Day’s eggs to conceive. Day carried the child—known in the legal pleadings as Z.S.—to birth in 2010. The couple raised Z.S. together until they split in 2013. Even after that, Day and Strickland shared custody and expenses until Day remarried in 2015.
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Anonymous Donor = Father. In the divorce proceedings, Day sought to deny Strickland parental rights to Z.S. And the court sided with Day. The court even took the radical step of holding that the child’s other parent was actually the anonymous sperm donor, the father of Z.S.! Therefore, with Z.S. already having two parents (Day and the donor father), the court determined that Strickland was precluded from being a third parent. The court awarded Strickland the consolation prize of limited visitation rights for having acted previously as a parent. But it denied Strickland the full legal rights associated with being a parent.
This Should Be A No-Brainer. Like other cases I’ve recently discussed, this situation should be a “no-brainer” after the U.S. Supreme Court’s decision in Obergefell. The spouse of a woman giving birth should be presumed to be the other parent of the child. This already applies to a husband even when he is not the biological parent of the child (for example, if the husband has genetic or fertility issues, and the couple turned to anonymous sperm). And after Obergefell, most states don’t hesitate to name the female spouse of a woman giving birth as the second parent of the child. They even allow placing both women on the child’s birth certificate. (Of course, whether that birth certificate is recognized in other states or countries is another issue.)
What Are You Doing, Mississippi? The court made up its own novel distinction between children born merely “during” a marriage, as opposed to children born “of” the marriage. It then held that Z.S. was born only “during the marriage, not of the marriage,” “wherein both parties are not considered parents.” Presumably, a child born “of the marriage” would be genetically related to both parents. But obviously, this line-drawing creates a major problem for every Mississippi person out there born with the help of donor sperm.
Now, even children raised by a heterosexual mother and father may need to rethink who their “real” parents are legally. For instance, an anonymous sperm donor—who spent 20 minutes at a fertility clinic for some quick cash, and whom you have never met and likely will never meet (and maybe don’t want to meet)—may be your new legal dad. Megabummer.
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In The Mississippi Supreme Court We Trust. Fortunately, with this appeal, the Mississippi Supreme Court has a chance to correct the lower court’s terrible ruling, and set the record straight. Same-sex couples deserve equal recognition of parental rights as heterosexual couples. Trying to fudge the situation just makes everything harder for all people, whether they are children of gay or straight parents. And anonymous sperm donors should not be recognized as legal parents! So I am looking forward to a reasoned and equitable ruling.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.
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