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Woman in same-sex couple wins parental rights after divorce

9 April 2018
Appeared in BioNews 944

The Mississippi Supreme Court has overturned a ruling that an anonymous sperm donor has parental rights over a child born to a lesbian couple, upholding the legal parenthood of the non-biological mother. 

During their marriage Kimberly Day and Christina Strickland sought fertility treatment, as a result of which Day gave birth to a son in 2011, conceived using her own egg and anonymous donor sperm. Mississippi law at the time did not allow both members of a same-sex couple to be named on a birth certificate, so only Day's name appears. The couple separated two years after the child was born. 

In granting a divorce in 2016, the Rankin County Chancery Court said that although Strickland remained responsible for child support and awarded her visitation rights, she could not be considered the child's legal parent. It held that the anonymous sperm donor was an 'absent father' whose legal parenthood first needed to be terminated. 

Strickland appealed the decision, arguing that the couple had raised the child as co-parents and that she had stayed at home with him in the first year while Day worked full-time. On separation, Strickland continued to visit the child and made financial contributions towards his upbringing. 

Deciding in favour of Strickland, Justice David Ishee in the supreme court ruled that 'an anonymous sperm donor is not a legal parent whose rights must be terminated'. To hold otherwise, he said, would be to 'elevate the rights of a donor – who is a complete stranger to the child, and likely never will be identified – over the rights of a person who has known and cared for the child'. 

Justice Ishee added that requiring parents to terminate the parental rights of donors 'would not be in the best interest of the child – to say nothing of the expense and time it would require'. It could also have a 'chilling effect' on sperm donation in the state and would 'disrupt the familial relationships and expectations of Mississippians who have conceived children' through donor conception.

Rather than being an 'absent father', the judge said the sperm donor was, in reality, a 'non-existent father'. 

Mississippi legislation does not address the issue of anonymous sperm donors' parental rights, but it does stipulate that the husband of a woman undergoing IVF using donor sperm cannot 'disestablish paternity'. Justice Ishee decided this indicated that the state parliament never intended anonymous sperm donors to have parental rights. 

Not all the judges deciding the case were in agreement, however, with Justice James Maxwell saying that the issue was a matter of policy for the legislature and for not the court. The Chief Justice William Waller called on the Mississippi State Legislature to address the issue: 'The legislature should speak directly to the recognition of the legal status of children born during a marriage as the result of assisted reproductive technology.'

The chancery court will now determine who has custody of the child. 

Christina Strickland v. Kimberly Jayroe Strickland Ray
The Supreme Court of Mississippi |  5 April 2018
Mississippi court: Woman has parent rights in same-sex split
Washington Post |  5 April 2018
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