Nevada family-law case summaries

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.