by Ken Ritter, Associated Press
LAS VEGAS (AP)—Two Nevada Supreme Court justices appeared troubled Monday that a child born to one woman from the fertilized egg of her lesbian partner didn’t have a legal voice in Family Court hearings about whether the birth mother has parental rights.
Justices Kris Pickering and Nancy Saitta noted that no guardian was appointed during lower-court proceedings to advocate for the needs and future of the girl, now 4.
“Where do you focus on the best interest of the child?” Pickering asked. “The child has a stake in the game as well.”
Biological mother Veronica Damon’s lawyer, Bradley Schrager, told the seven-member court in Carson City that a Family Court judge in Las Vegas was considering a surrogacy arrangement, not maternity. He said Nevada state statutes don’t automatically grant parental rights to Sha’Kayla St. Mary, whom Schrager called a “gestational surrogate” in the eyes of the law.
But St. Mary’s attorney, Joseph Nold, said St. Mary’s name is on the birth certificate, which lists a hyphenated last name for the child, and that both women signed a fertility clinic document before St. Mary underwent in vitro fertilization of eggs from Damon fertilized by an anonymous sperm donor. St. Mary’s medical insurance covered the birth, he added.
“Veronica was designated as the ‘biological parent,’ and Sha’Kayla was designated as the ‘nonbiological parent,’” Nold said of the agreement signed before the baby girl was born in June 2008. “What we have here today is a co-parenting agreement between same-sex partners.”
The court made no immediate ruling.
The couple’s relationship and subsequent estrangement predated a Nevada domestic-partnership law that went into effect in October 2009. Nevada law today defines marriage as between a man and a woman—leaving unclear the parental rights of gay couples unless they enter a contractual agreement, the parties said.
“The fact of having given birth to a child does not, in and of itself, confer parental rights,” Schrager said in written arguments submitted in the case. “There is no provision in Nevada law for same-sex co-parenting agreements, especially for unmarried persons or persons who have not entered into valid domestic partnership arrangements.”
Damon’s attorney pointed Monday to a Clark County District Court judge’s ruling that Damon was the sole legal parent of the girl born in June 2008. The judge ruled that St. Mary could seek visitation rights.
During about 40 minutes of oral arguments, Justices Michael Douglas, Ron Parraguirre and James Hardesty focused several questions on whether Damon and St. Mary had a valid parental contract. The two began their intimate relationship after meeting as corrections officers at a state women’s prison in North Las Vegas.
Nold, St. Mary’s lawyer, called it clear under state law that a woman gains parental rights to a child to whom she gives birth.
But he noted that many of the concerns raised by the state high court on Monday had not been addressed during lower-court hearings.
Several justices also appeared willing to send the case back to Family Court for more fact-finding.
“You have competing presumptions here,” Parraguirre said.