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Mississippi high court sides with non-biological mom in custody case

by Lisa Keen

Lambda Legal client Christina Strickland. Photo: Courtesy Lambda Legal
Lambda Legal client Christina Strickland. Photo: Courtesy Lambda Legal  

Mississippi is one of those Deep South states that really did not want to allow same-sex couples to marry. It didn't want them to adopt children either. And even after the U.S. Supreme Court said states had to let same-sex couples marry, Mississippi fought back for a while to try and keep them from divorcing. So maybe it wasn't such a big surprise recently when a state court ruled that the non-biological mother of a child born in Mississippi to a lesbian couple married in Massachusetts but now divorcing shouldn't be able to claim any parental rights.

That's what happened in 2016. A chancery (or family) court in Mississippi ruled that a child born to a lesbian couple using insemination of an anonymous donor's sperm was the child of the biological mother and the anonymous sperm donor - not the biological mother's same-sex spouse.

But on April 5, the Mississippi Supreme Court, one of the most conservative in the nation, ruled unanimously that was the wrong result.

The nine-member court ruled that, because state law prohibits a father from "disestablishing" his paternity to a child conceived by alternative insemination, "the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm - irrespective of the sex of the married couple that utilized his sperm to have that child."

Beth Littrell, the Lambda Legal Defense and Education Fund attorney who represented the non-biological mother in this case, Strickland v. Day, said that, while the decision is binding only in Mississippi, it can have impact elsewhere. Littrell said it can "help fill the void left by many states when it comes to the rights of children born via [alternative insemination]." And, she said, "it also is significant because it was rendered by a conservative Southern state's court of last resort...."

The Mississippi Supreme Court, said Littrell, "not only added weight to the consensus that biology alone does not establish parentage but did so in a gender-neutral way that recognized that the parties were a legally married same-sex couple at the time the child was born, notwithstanding that it was years before Mississippi was forced to recognize marriage equality."

Mississippi was forced to recognize marriage for same-sex couples in 2015, after the U.S. Supreme Court ruled (in Obergefell v. Hodges) that state bans against equal marriage rights for same-sex couples violates the federal Constitution's guarantee of equal protection.

Subsequent to Obergefell, some states - particularly in the South - tried to buck against that ruling. Mississippi tried to continue enforcing its state ban against allowing same-sex couples to adopt, and it passed a law allowing businesses to deny services to LGBT people and same-sex couples. That latter law is still in effect. Arkansas tried to bar a woman's name from the birth certificate of a child she had with her same-sex spouse, the child's biological mother. The U.S. Supreme Court reversed that decision, in Pavan v. Smith, but now the case is back before the U.S. Supreme Court because the Arkansas Supreme Court denied the couple's right to recover attorneys fees.

And though the Mississippi Supreme Court decision in the current case, Strickland, is not binding outside Mississippi, Littrell said "it is persuasive authority that should be helpful whenever any court considers marriage equality, the retroactive application of Obergefell v. Hodges and the parental rights" of couples who use alternative insemination.

The case
The Strickland case involved Christina Strickland and Kimberly Jayroe, who began a relationship in 1999. After several years, they decided to adopt a child together but, since gay couples could neither marry nor adopt children in Mississippi at that time, Jayroe adopted the child and both women assumed parental responsibilities. That was in 2007. Two years later, the women traveled to Massachusetts and obtained a marriage license, and Kimberly took Christina's last name, Strickland.

In 2010, they decided to have another child, this time by using alternative insemination of Kimberly Strickland with the sperm of an anonymous donor. The couple initially planned to travel back to Massachusetts in time for the child's birth so they could have both women's names on the child's birth certificate. But instead, Kimberly Strickland had a C-section, the baby was born in Mississippi in 2011, and only Kimberly Strickland's name was listed on the child's birth certificate.

Two years later, the couple separated. It wasn't until 2016 that the women agreed to let a state family court sort out who had custody, visitation, child support, and parentage of the two children. The court ordered Christina Strickland to pay child support for both children and it granted visitation to the child who Kimberly Strickland adopted. But the court said Christina Strickland could not be considered the legal parent of the second child, conceived through insemination, because the sperm donor constituted an "absent father" and Christina Strickland could not be named the second child's parent unless the donor relinquished his rights.

Lambda Legal represented Christina Strickland on appeal. It argued, "The presumption of parentage attaches at birth to all children born to married couples." Citing Obergefell and a 1989 case involving the parental rights of a child born to a male-female couple (Michael H. v. Gerald D.), Lambda Legal said the court had to apply the laws of parentage the same with same-sex couples as it does with male-female couples and "in a gender-neutral manner."

In the Michael H. case, the U.S. Supreme Court ruled that the man who was married to a woman when she gave birth to a child is the father of that child, even though blood tests indicated the biological father was another man. The ruling - written by the late Justice Antonin Scalia - upheld a California law that said a child born to a woman living with her husband is presumed to be a child of that marriage.

In the Michael H. case, the child born to the married couple wanted to retain a relationship with the man who was her biological father. But in the Strickland case, noted the Mississippi Supreme Court, the child "could never find the donor, much less have a meaningful relationship with him."

"Christina took on all the responsibilities and rewards that accompany parenthood," said the decision, referring to the non-biological mother. "To now deprive Christina of these responsibilities and rewards, and diminish her parent-child relationship with [the second child] is certainly a detriment to Christina, to say nothing of the detriment to [the child] himself."

Although several of the justices expressed disagreement with certain procedural matters, all nine agreed with the result. The case was remanded to the family court for consideration of Christina Strickland's claim for custody.

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