The Mississippi Supreme Court has recognized the parental rights of both moms in a separated lesbian couple. While several other states have resolved similar issues raised by marriages that were not originally recognized, the Mississippi case instead reflected a concern about whether an anonymous sperm donor should be recognized as a parent.
Chris Strickland and Kimberly Jayroe Strickland Day married in 2009 in Massachusetts, and in 2011, Day gave birth to their son, Z.S., in Mississippi. Because their marriage was not recognized at the time, Strickland was not listed on her son’s birth certificate. The couple separated in 2013, but only formally divorced in 2016, after the U.S. Supreme Court had ruled in favor of marriage equality nationwide.
When they divorced, recognition of their marriage was thus not a concern. But the Rankin County Chancery Court concluded that Strickland was not Z.S.’s parent, but merely acted in loco parentis. The chancery court contended that the anonymous sperm donor the couple had used (from a clinic in Maryland) had parental rights that would have to be terminated before Strickland could be recognized as a parent.
Z.S. was “a child born during the marriage, not of the marriage,” the lower court ruled, and the anonymous sperm donor was “an absent father.” This was because his biological connection to the child made him the “natural father.” His parental obligation would have to be terminated before Strickland’s could be considered.
In its decision, the Mississippi Supreme Court reversed this consideration and explained why, despite the lack of clarity in state law, it would not make sense to recognize an anonymous sperm donor as a parent.
First of all, that would suggest that all children conceived using artificial insemination from a sperm donor have three parents, the birth mother, her spouse, and the donor. “Three parents — that cannot be what the Legislature intended,” the Court reasoned.
This would “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.” Such children would be left with only one legal parent, “and in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding — it would leave the child an orphan.”
Moreover, it would create an obligation for anonymous sperm donors. “Make no mistake,” the Court wrote, “affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy — perhaps creating a chilling effect on sperm donation.”
While it is important in many other circumstances to ensure there’s a process through which parentage can be claimed, the Court explained why it makes no sense to protect an anonymous sperm donor’s right to parentage:
But with anonymous sperm donors, there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an “absent father,” but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him.
It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor’s identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.
In recent years, several other state courts, including those in Arizona, New York, and Maryland have resolved similar cases relating to same-sex families that formed before marriage equality was a nationwide standard. Last year, the U.S. Supreme Court also resolved the question in a case from Arkansas.
Arkansas, like many other states, has a law that states that when a mother gives birth to a child, her husband is presumed to be the father — even when artificial insemination from a donor was used. That presumption, however, was not extended when the mother’s spouse was another woman. The Supreme Court explained that, consistent with its 2015 marriage equality ruling in Obergefell v. Hodges, same-sex families must be recognized in the same way that different-sex families are.
This will likely ensure that same-sex families can expect equal recognition of their parentage. For families that formed before these rulings guaranteed that recognition, it will be left to state courts to sort out parental obligations.