St. Mary v. Damon

Statutes cited

Key holdings

Practitioner summary

The court reviewed the legal questions de novo, citing State Indus. Ins. Sys. v. United Exposition Servs. Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1998) ("Questions of law are reviewed de novo."). Parentage is determined under the Nevada Parentage Act, modeled on the Uniform Parentage Act, which is "applied to determine legal parentage." Russo v. Gardner, 114 Nev. 283, 288, 956 P.2d 98, 101 (1998). Statutory interpretation principles from Cromer v. Wilson, 126 Nev. __, 225 P.3d 788, 790 (2010), and Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513 (2000), governed. Because the Legislature revised NRS Chapter 126 in 2013 after the district court's determinations, the court reviewed under the law in effect at the time of the proceedings below, noting the amendments did not change its conclusions. On maternity, the court identified multiple statutory avenues: under both the pre-2013 and current versions of NRS 126.041(1), maternity may be established by "proof of her having given birth to the child"; under NRS 126.231, the paternity statutes apply "[i]nsofar as practicable" to maternity actions, including presumptions based on marriage and cohabitation, NRS 126.051(1)(a)-(c), holding out, NRS 126.051(1)(d), genetic testing, NRS 126.051(2), and voluntary acknowledgment, NRS 126.053. Citing Love v. Love, 114 Nev. 572, 578, 959 P.2d 523, 527 (1998), the court observed that parentage rests on considerations beyond genetics alone. Here, each woman proffered evidence that could establish maternity - St. Mary by birth, Damon by genetic relationship. The court held that the Nevada Parentage Act and its policies do not preclude a child from having two legal mothers. It declined to read NRS 126.051(3) as conveying legislative intent to deprive a child conceived by artificial insemination of an intended mother's support, quoting In re T.P.S., 978 N.E.2d 1070, 1077 (Ill. App. Ct. 2012). The court grounded the two-mother holding in Nevada's best-interest framework - NRS 125.480(1), NRS 125.500(1), NRS 127.150(1), NRS 128.105, NRS 128.005(1) - the policy favoring two actively involved parents, Mosley v. Figliuzzi, 113 Nev. 51, 62-65, 930 P.2d 1110, 1117-18 (1997), and the domestic-partnership statutes, NRS 122A.300(1) and NRS 122A.300(3)(b). It found California precedent "highly instructive," relying on K.M. v. E.G., 117 P.3d 673 (2005) - which held both the egg donor and the birth mother in an analogous same-sex dispute were legal mothers under the UPA - and Elisa B. v. Superior Court, 117 P.3d 660, 666 (Cal. 2005), along with Chatterjee v. King, 280 P.3d 283, 292 (N.M. 2012), and Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 970 (Vt. 2006). Applying this framework, the court concluded the district court misread the 2009 birth-certificate order: that order recognized Damon's relationship with the child but "in no way purported to undo or deny St. Mary's parent-child relationship." The district court's surrogate finding exceeded the limited scope of the hearing it had itself set, and it was error to refuse to consider parentage and to confine the hearing to third-party visitation under NRS 125C.050. On remand, the district court must hold an evidentiary hearing to determine whether St. Mary is a legal mother, considering any relevant evidence for establishing maternity under the Nevada Parentage Act. On the co-parenting agreement, the court held the agreement was not within the scope of NRS 126.045 (2009), which governed surrogacy contracts between married intended parents and a surrogate: the agreement contained no language surrendering custody or relinquishing maternal rights, and instead provided for shared parental duties. Citing Rivero v. Rivero, 125 Nev. 410, 429, 216 P.3d 213, 226 (2009) ("Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy."), the presumption that fit parents act in their children's best interest, Troxel v. Granville, 530 U.S. 57, 68 (2000), and Rennels v. Rennels, 127 Nev. __, 257 P.3d 396, 399 (2011), and Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005), the court held that public policy favors parental agreements resolving custody, care, and visitation, and that a co-parenting agreement must not be foreclosed "on account of the parents being of the same sex," citing Kristine H. v. Lisa R., 117 P.3d 690, 696 (Cal. 2005), E.N.O. v. L.M.M., 711 N.E.2d 886, 892-93 (Mass. 1999), and A.C. v. C.B., 829 P.2d 660, 663-64 (N.M. Ct. App. 1992). If St. Mary is found to be a legal mother on remand, the district court must consider the co-parenting agreement in making its custody determination. The court noted that joinder of the child under NRS 126.101(1) may be necessary on remand, and declined to address St. Mary's remaining arguments.

In plain language

Sha'Kayla St. Mary and Veronica Lynn Damon were a couple who decided to have a child together. They used in vitro fertilization: Damon's egg was fertilized with sperm from an anonymous donor, and St. Mary carried the pregnancy and gave birth. Around the time of the procedure, the two signed a co-parenting agreement stating that they would "jointly and equally share parental responsibility" and, if their relationship ended, would continue to share the duties of raising the child. The child was given the hyphenated last name St. Mary-Damon. About a year after the birth, the relationship ended and the two disagreed over sharing time with the child. In 2009, Damon obtained a court order stating she was "the biological and legal mother of said child" and directing that her name be added to the birth certificate. When St. Mary later filed her own case seeking custody, visitation, and child support, the district court - apparently relying on that 2009 order - treated St. Mary as a mere surrogate (a woman who carries a child for someone else) rather than a parent. The court limited the hearing to "third-party visitation," a lesser right available to non-parents, and refused to consider whether St. Mary was a legal mother. It also declared the co-parenting agreement null and void, reasoning that under the then-existing surrogacy statute "a surrogate agreement is only for married couples, which only include one man and one woman." The Nevada Supreme Court reversed. It explained that under Nevada's parentage law, a woman can establish that she is a child's legal mother by "proof of her having given birth to the child." It also held that Nevada law does not prevent a child from having two legal mothers - here, one woman supplied the egg and the other gave birth, and each of those facts can support legal motherhood. Because the 2009 order recognized Damon as a mother but never said St. Mary was not one, and because the district court decided St. Mary was a surrogate without ever holding a hearing on that question, the case must go back for an evidentiary hearing to determine whether St. Mary is a legal mother or instead a surrogate/gestational carrier with no legal relationship to the child. The court also held that the co-parenting agreement was not a surrogacy contract at all - nothing in it said St. Mary was giving up the child or her rights - and that such agreements between two parents are consistent with Nevada public policy. The court stated that an agreement between two parents about custody after a breakup "must not be deemed unenforceable on the basis of the parents being of the same sex." If the district court finds on remand that both women are legal parents, it must consider the co-parenting agreement in deciding custody.