By Matthew Goodwin and Arthur S. Leonard
Matthew Goodwin is an associate at Brady Klein Weissman LLP in New York, specializing in matrimonial and family law; Arthur S. Leonard is the Robert F. Wagner Professor of Labor and Employment Law at New York Law School.
On April 5, 2018, combined rulings from the Mississippi Supreme Court recognized a former same-sex spouse as a parent of a child born during the parties’ marriage on the grounds of equitable estoppel in Strickland v. Day, 2018 Miss. LEXIS 155, 2018 WL 1660573. Surprisingly, all five written opinions in the case failed to mention or discuss the common law doctrine known as the “parental presumption.”
This common law doctrine presumes that the spouse of a woman who gives birth to a child during marriage is the child’s other parent. Yet the Mississippi Supreme Court’s opinions in Strickland were silent on the issue. The parental presumption also seems arguably mandated in Strickland under Obergefell v. Hodges, 135 S. Ct. 2584 (2015) and Pavan v. Smith, 137 S. Ct. 2075 (2017), but neither of those cases are mentioned in any of the court’s rulings.
Confusingly, there were five written opinions from the nine-member court subscribed to by different judges or groups of judge. None of the opinions represented a clear majority. However, taken together, the opinions amount to a ruling that Cristina Strickland is a parent of the child Z.S. and that the donation of sperm by an anonymous individual towards a child’s conception has no impact on the parental rights of the former same-spouse of the child’s biological mother.
The parties, Christina Strickland and Kimberly Jayroe, began a romantic relationship in 1999. In 2007, while still unmarried, Kimberly adopted a child, E.J. The two women considered E.J. their child but Christina was not an adoptive parent of E.J. because Mississippi did not allow joint adoptions by unmarried parents. The women wed in 2009 in Massachusetts, despite the fact their marriage was not recognized in Mississippi at that time.
Kimberly, who took Christina’s last name upon marriage, became pregnant the following year through donor insemination using sperm anonymously donated to a Maryland sperm bank. Kimberly “signed an acknowledgment agreeing that she would ‘never seek to identify the donor.’ The acknowledgment further stipulated that the donor would never be advised of Kimberly’s identity,” according to the lead opinion by Justice David Ishee. The clinic paperwork also identified the women as spouses and both women signed documents stating they were undergoing the treatments as a couple and “acknowledged [their] natural parentage of any child born to [them]” through the insemination. The parties had planned to travel to Massachusetts for the birth so that both women’s names could appear on the birth certificate, but Kimberly gave birth to Z.S. six weeks earlier in Mississippi in a surgical procedure.
Before and after Z.S.’s birth, the parties operated as a family unit and co-parented the children. Christina testified she stayed home with Z.S during the first year of his life and that both of the children — Z.S. and E.J. — share a close bond with Christina and call her mom.
When the parties separated in January 2013, Christina continued to have parenting time with both children and paid child support and expenses for Z.S. to Kimberly. Before either party had filed for or obtained a judgment of divorce, Kimberly in August of 2015 married a second spouse. Shortly thereafter, Christina filed for divorce. Kimberly moved for a declaratory judgment seeking to have her second marriage deemed valid and her first dissolved. In answer, Christina sought legal and physical custody of both children and asked to be named the parent of Z.S.
After a one-day hearing in September of 2016, the chancery (trial) court held in pertinent part that Z.S. was “‘a child born during the marriage, not of the marriage’ and so both parties were not considered parents” (emphasis supplied). The trial court went on to hold that “the anonymous sperm donor constituted an ‘absent father’ . . . ” and “ . . . the donor’s legal parentage precluded a determination that Christina was Z.S.’s legal parent.”
Writing on behalf of four other judges and himself, Justice Ishee agreed with Christina that the chancery court erred in its finding that the “sperm donor was the ‘natural father,’ whose parental rights were subject to termination.” While hard to fathom given the length of time artificial insemination has been available in this country, the Mississippi Supreme Court had “ . . . never before [determined] what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm.”
Justice Ishee looked to Mississippi’s disestablishment-of-paternity statute for guidance on the question of the Mississippi legislature’s intent on parental rights of anonymous sperm donors. That code section holds that “a father cannot seek to disestablish paternity when the child was conceived by [artificial insemination] during the marriage to the child’s mother.” Finding it impossible for this statute to co-exist with the chancery’s ruling, Judge Ishee went on to write that “ . . . requiring parents of a child conceived through the use of [artificial insemination] to terminate parental rights of the donor would not be in the best interest of the child — to say nothing of the expense and time it would require.”
Justice Ishee’s opinion then turned to the issue of equitable estoppel and found the record supported Christina’s argument that Kimberly must be estopped from denying Christina’s parentage.
First, the record showed “. . . Kimberly made numerous representations that Christina was an equal co-parent to Z.S.” Here the court pointed to the Maryland clinic’s form agreement, signed by the couple, indicating their joint intention to undergo artificial insemination, as well as the birth announcement sent out by the couple which read “‘hatched by Two Chicks. Chris[tina] and Kimberly proudly announce the birth of their son.’”
Second, Justice Ishee agreed with Christina that she had changed her position in reliance on Kimberly’s representation by, for example, serving as Z.S.’s primary caretaker for a year after he was born.
Third, Justice Ishee found Christina suffered a detriment caused by Kimberly’s change of position after the parties split up, writing: “[B]y changing her position in reliance on her believe that she would be an equal co-parent, Christina took on all the responsibilities and rewards that accompany parenthood. To now deprive Christina of these responsibilities and rewards, and diminish her parent-child relationship with Z.S. is certainly a detriment to Christina, to say nothing of the detriment to Z.S. himself.”
Thus, concluded Justice Ishee, the chancery court erred in finding Christina had only acted in loco parentis for Z.S., and remanded the case to the trial court for a rehearing on custody.
Christina is represented by Mississippi attorney Dianne Herman Ellis and Lambda Legal staff attorney Elizabeth Lynn Littrell. Lambda Legal’s petition for review specifically asked the court to consider whether Obergefell required Mississippi to apply laws relating to the marital presumption in this case. Again, none of the opinions addressed these questions despite Lambda’s request that they do so.
As Justice Coleman wrote in a partial concurrence and dissent, “[a]ll justices agree that, at least in the instant case, the trial judge erred in finding that the parental rights of the anonymous sperm donor must be terminated before the legal status of Christina Day could be adjudicated.”
There, all clear agreement appeared to end. A few of the dissenters took issue with the plurality basing its finding of error on estoppel grounds when, apparently, estoppel had not been raised by Christina at the trial level. This charge appears to have been answered by Justice Ishee insofar as his decision pointed out that the Supreme Court reviews a chancellor’s conclusions of law de novo.
Some of the justices took issue with what they saw as Justice Ishee’s apparent willingness to weigh in on the issue of the parental rights of anonymous sperm donors, arguing that task must be left to the legislature.
Yet another opinion seemingly approved of portions of the chancery court’s adjudication of the custody dispute, pointing to earlier custody cases which granted nonbiological fathers the status of in loco parentis, which is the status the trial court gave to Christina.
That estoppel had not been raised at the trial level and yet was the ground on which the plurality found Christina to be a parent makes the court’s refusal to consider, or willful ignorance of, the parental presumption all the more troubling. Indeed, if at least five members of the court felt empowered to look to a legal theory not raised at the trial level — i.e. estoppel — why would they not instead rely on the parental presumption which was raised at the trial level, and which the U.S. Supreme Court in Pavan implicitly held applies to same-sex and heterosexual married couples alike? We may never know given the failure of any of the opinions to mention the subject.
Perhaps the court was unwilling to address the question whether Obergefell should be applied retroactively to 2011 to recognize that Kimberly was married to Christina when she gave birth to Z.S. But states in some other jurisdictions have adopted such retroactive applications.