This week, the Mississippi Supreme Court heard arguments on a case that could have broad implications on the custody of children born through in vitro fertilization to same sex spouses.
Christina Strickland and Kimberly Day began a relationship 18 years ago. The couple legally wed in Massachusetts once that state began recognizing same sex marriage. Subsequently, they decided to have a child with an anonymous sperm donor and Kimberly as the natural mother. They agreed to have the child together and selected the sperm donor together. Kimberly gave birth to a boy in 2010.
The matter became complicated because Mississippi did not recognize same sex marriage at the time of the birth of the child and therefore refused to put Christina’s name on the birth certificate. When they separated and filed for divorce, both women sought joint custody of the child. The trial court found Christina could not be a legal parent of the child, only the anonymous sperm donor. The couple held out the child as their own, signed the in vitro fertilization papers together, and raised the child together even after they separated.
The case has serious implications for couples who were legally married in a state that recognized same sex marriage but gave birth to a child in a state that did not recognize same sex marriage and as a result the birth certificate does not reflect parentage as born of the marriage of the parties.
Typically, no state gives anonymous sperm donors legal rights to the children born of their donation. To the contrary, most states do the opposite to protect the rights of the parents from collateral attacks on custodial rights by a sperm or egg donor. If the Mississippi Supreme Court would uphold the trial court decision, it would run counter to all of these state laws.
Further, after the Obergefell decision legalizing same sex marriage as a constitutional right, no state can refuse to put same sex parents as the actual parents of a child on a birth certificate.
Given these two legal precedents, it seems that the only proper course of action would be for the Mississippi Supreme Court to declare the child born of the marriage and therefore the child of both women. Any other ruling would seem to violate the Constitution and place contractual rights of fertilization above parentage assumptions, namely, that the child born of a marriage is the natural child of the two parents of that marriage.
As noted, numerous states did not record same sex parents even after other states started to authorize same sex marriages. So, thousands of children could find themselves with birth certificates that fail to list both parents and, upon divorce, find themselves in the strange custody scenario before the Mississippi Supreme Court.
We will keep you updated on the ruling of the case when it comes down.
If you have questions about same sex divorce, contact us – we can help.