The Nevada Supreme Court has ruled that a woman who gave birth to a child from her companion’s fertilized egg will now have the opportunity to make a case for her parental rights. The court ruled unanimously in the case, which had no prior precedent in the state. In issuing the ruling, the court reversed the ruling of a lower court that found that the woman carrying the child to term was simply a surrogate, and therefore did not have any custody rights.
This means that the case could ultimately decide the child has two legal mothers. It has now been returned for further hearings to Clark County District Court
The egg donor in the case is Veronica Lynn Damon, and Sha’Kayla St. Mary carried the child. St. Mary gave birth back in June 2008. The two met in 2006 while they were both working at the Southern Nevada Women’s Correctional Center. Using money that had been saved for retirement, the couple conceived a child using an anonymous sperm donor and a fertility clinic. The clinic required a parenting agreement, in which Damon was called the “biological parent” and St. Mary was the “non-biological parent”.
After the relationship between the two women ended, St. Mary began her custody battle.
Justice Nancy Saitta of the Nevada Supreme Court said that the lower court made an error when it found that St. Mary did not have any parental rights without having an evidentiary hearing first. In addition, at the time Nevada law said that a mother-child relationship could be formed by proof that the mother gave birth to the child. Furthermore, the court found the co-parenting agreement that the agency had the women sign is not unlawful. The district court had ruled that it was.
The agreement had said that the two women, if their relationship ended, would keep sharing the responsibilities and privileges of raising the child as parents. The court found that when two parents, who are acting in the child’s best interest, have a custody agreement in place regarding a future separation it should not be found unlawful because the couple is same sex.
District Court Judge John Bonaventure had said in his ruling that the child’s parent was Damon, and granted one day per week of access to the child to St. Mary.
Damon’s Attorney Bradley Schrager found that the decision was normal regardless of how unique the case is. The Nevada Supreme Court would like to see the facts of the case developed to a further degree by the trial court before making a future ruling. He also noted that this case is an example of how the law often doesn’t keep up with changing family dynamics in the United States.
St. Mary’s Attorney Joseph Nold said that he plans to file a motion that would return the child to Nevada. The district court had allowed Damon to move to Washington state.
Previously, the California Supreme Court has ruled that the state’s laws do not keep two women from both being legal mothers of the same child.