The Mississippi Supreme Court on Nov. 29 heard the case of a woman suing her former lesbian partner for parental rights.
A steady stream of gay custody battles is working its way through the courts in the wake of the 2015 U.S. Supreme Court Obergefell decision legalizing same-sex marriage. More same-sex couples are using donor eggs and sperm, surrogacy, and in vitro fertilization to conceive children, but most state laws regarding parental rights and assisted reproductive technology are based on biological assumptions—granting full parental rights to a married husband and wife, but not to a wife and wife or husband and husband.
LGBT advocates argue the redefinition of marriage necessitates a redefinition of parenthood. But critics say these cases are further dissolving the link between biology and parenthood and pushing against what social science has continually shown: Children do best when raised by their biological mother and father who are committed to one another in marriage.
The Mississippi case involves Christina Strickland and Kimberly Day, who legally married in 2009. Day gave birth to a son conceived by an anonymous sperm donor in 2010. But the two split in 2013, and a lower court judge last year gave Day full legal custody of the now-6-year-old boy during divorce proceedings, ruling that Strickland wasn’t a legal parent and the anonymous sperm donor had parental rights.
“The court finds two women cannot conceive a child together,” wrote Rankin County Chancery Judge John Grant in his ruling. “The court doesn’t find its opinion to be a discriminatory statement, but a biological fact.”
Strickland, 44, appealed the decision.
Arguing before the Mississippi Supreme Court on Wednesday, Strickland’s attorney said the court must affirm her parental rights because the U.S. Supreme Court’s ruling legalizing gay marriage requires same-sex couples be treated equally. Strickland asked to be named on the birth certificate at the hospital after the boy’s birth but was refused.
“Whether you are married to the same sex or not, an anonymous sperm donor should never trump the parental rights of spouses, whether same or different sex, who plan for, provide for, care for, and love their children,” said Beth Littrell, Strickland’s attorney, according to the Jackson, Miss., Clarion-Ledger.
Day’s attorneys argued Strickland could have sought to legally terminate the sperm donor’s parental rights or adopt the boy. She did neither. It is unclear why the sperm donor’s rights were not terminated during the legal transfer, as is normally the case.
Strickland’s attorneys are using what used to be legally called a “presumption of paternity,” the assumption that the child of a wife was also the child of her husband, saying it should now be applied to same-sex couples, according to Peter Sprigg, senior fellow for policy studies at the Family Research Council.
“We have gone from the presumption of something that was almost always going to be true in any case to presuming something that cannot possibly be true,” Sprigg said, adding that the argument shows the absurdity of the implications of the homosexual parenting movement.
But the tide is turning that direction.
Other states, including Arkansas and Arizona, have recently ruled that same-sex couples can be named as sole parents on a birth certificate and receive the same presumption of parenthood as opposite-sex couples. Other states, including Colorado, New Jersey, and New York, have expanded the definition of parenthood to include caretakers who initially agreed to conceive and raise a child.
But Obergefell was about the granting of marriage licenses, not parenthood, argues Sprigg: “It should not be interpreted to having implications to this issue of parenting.” He noted that even if Obergefell necessitated the granting of parental rights to same-sex couples, this case involves a birth before the Supreme Court decision. “This couple was simply not married in the eyes of Mississippi at the time this child was born,” he said.
The Mississippi Supreme Court has not said when it will rule on the case.
— by Kiley Crossland