Surrogate mother can argue for parental rights, Nevada Supreme Court rules

CARSON CITY — A woman who bore a child from a fertilized egg donated by her female companion will get the chance to make her case for parental rights, the state Supreme Court ruled Thursday in a case unprecedented in Nevada.

The unanimous opinion written by Justice Nancy Saitta reversed a lower court decision that found the woman who carried the child to birth was only a surrogate and not entitled to any custodial rights.

The case could ultimately mean that the child has two legal mothers.

The case was returned to Clark County District Court for further hearings in the dispute.

The case involves Veronica Lynn Damon, who donated the egg, and Sha’Kayla St. Mary, who carried the child to term, giving birth in June 2008.

Damon and St. Mary were employees at the then-Southern Nevada Women’s Correctional Center in 2006 when they met. They used money set aside for their retirement to conceive a child through a fertility clinic using an anonymous sperm donor.

In the parenting agreement required by the clinic, Damon was identified as the “biological parent” and St. Mary as the “non-biological parent.”

When the relationship ended, St. Mary initiated a custody battle.

In the court’s ruling, Saitta said the lower court erred when it found, without holding an evidentiary hearing, that St. Mary lacked any parental rights. Nevada law at the time said a mother-child relationship may be established by proof of the mother having given birth.

The court also found that the co-parenting agreement signed by the two women is not void or unlawful as found by the district court.

“When two parents, presumptively acting in the child’s best interest, reach an agreement concerning post-separation custody, that agreement must not be deemed unenforceable on the basis of the parents being of the same sex,” Saitta wrote. “In this matter, the parties’ co-parenting agreement stated that if their relationship ended, they would continue to share in the responsibilities and privileges of being the child’s parent.”

District Judge John Bonaventure had ruled that Damon was the parent and St. Mary could have access to the child one day a week.

Attorney Bradley Schrager, who served as court-appointed counsel to Damon, called the decision fairly routine despite the unusual nature of the case. The Supreme Court wants more facts developed at the trial court level for what will likely be another ruling in the future, he said.

But the case does point out how the law has difficulty in keeping up with changing family dynamics, Schrager said.

“One of the issues with cases like this is that families change faster than the law does,” he said.

Attorney Joseph Nold, representing St. Martin, said said he will be filing a motion to return the child to Nevada. The lower court had given Damon permission to relocate to Washington state, he said.

While the Nevada case is the first of its type, the California Supreme Court ruled in a similar case that its laws do not preclude two women from being the legal mothers of a child.

Contact Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Follow him on Twitter @seanw801.