OF JUDGMENT: 10/17/2016
COUNTY CHANCERY COURT HON. JOHN S. GRANT, III TRIAL JUDGE
COURT ATTORNEYS: PRENTISS M. GRANT DIANNE HERMAN ELLIS
ATTORNEYS FOR APPELLANT: DIANNE HERMAN ELLIS ELIZABETH LYNN
ATTORNEY FOR APPELLEE: PRENTISS M. GRANT
Christina Strickland and Kimberly Day were a same-sex couple
legally married in Massachusetts in 2009-a marriage that
later was recognized legally in Mississippi. At the time of
their marriage, the couple resided in Mississippi. A year
later, the newlywed couple sought to bring a child into their
family through the use of artificial insemination (AI) of
sperm from an anonymous donor. Kimberly served as the
gestational mother and eventually gave birth to
in 2011. Z.S. was born in Mississippi.
The couple separated in 2013. And eventually, in October
2016, the Rankin County Chancery Court entered a final
judgment of divorce. In the judgment, the chancery court
found, among other things, that Christina acted in loco
parentis to Z.S., but that Christina was not Z.S.'s
legal parent. Central to the chancery court's decision
was the finding that the anonymous sperm donor had parental
rights that must be terminated and thus precluded Christina
from being Z.S.'s legal parent. Christina appeals to this
This case presents an issue of first impression. We never
before have addressed what rights, if any, an anonymous sperm
donor has in a child conceived of his sperm. Accordingly, we
must determine whether the chancery court erred in finding
that the rights of the anonymous sperm donor precluded a
finding that Christina was Z.S.'s legal parent. After
review of the record and the relevant law, we find that the
chancery court erred in this finding. First, an anonymous
sperm donor is not a legal parent whose rights must be
terminated. And second, the doctrine of equitable estoppel
precludes Kimberly from challenging Christina's legal
parentage of Z.S. And so we reverse the findings of the
chancery court and remand the case for a custody
determination in a manner that is consistent with this
AND PROCEDURAL HISTORY
Christina and Kimberly first began a romantic relationship in
1999. Later, while still unmarried, the couple decided to
adopt a child. After going through the adoption process, the
couple adopted a child named E.J.,  finalized in 2007. Kimberly
alone served as the adoptive parent because Mississippi law
precluded same-sex couples from adopting jointly. In 2009,
Kimberly and Christina were married in Massachusetts.
Kimberly took Christina's last name.
In 2010, the newlywed couple decided to add to their family
through the use of assisted reproductive
technology (ART)-specifically, AI of sperm from an
anonymous donor. Both Kimberly and Christina considered, and
were evaluated to determine, which one of them should carry
the child. And after testing and consultation with a
fertility clinic, the couple decided that Kimberly would
serve as the gestational mother, and that they first would
attempt in vitro fertilization (IVF) with Kimberly's ova.
They searched for sperm, eventually choosing sperm from a
Maryland sperm bank. The name of the anonymous donor is
unknown and he was identified only as a number-"Donor
No. 2687." Kimberly signed an acknowledgment agreeing
that she would "never seek to identify the donor."
The acknowledgment further stipulated that the donor never
would be advised of Kimberly's identity. In the clinic
paperwork, Kimberly was recognized as a married woman, and
Christina was identified as her spouse. Both women signed an
acknowledgment stating that they were:
voluntarily undergoing, individually and as a couple,
treatment . . . in order to conceive a child through this
treatment and that [they] acknowledged [their] natural
parentage of any child born to [them] through this technique.
testified that she was involved in and supportive through
every step of the conception and pregnancy.
As for the birth of Z.S., Christina testified that the couple
planned on traveling to Massachusetts to have the child, so
that both she and Kimberly could be listed as parents on the
birth certificate. But on April 12, 2011, six weeks before
her due date, Kimberly gave birth to Z.S. via a cesarean
section in a Mississippi hospital. The reason Z.S. was born
in Mississippi, and not in Massachusetts, is disputed.
Kimberly claimed it was because she did not want Christina on
the birth certificate,  while on the other hand, Christina
claimed it was due to the unforseen, emergency cesarean
section. Nevertheless, because Z.S. was born in Mississippi,
Kimberly's name was the only name placed on his birth
As it relates to child rearing, Christina testified that, as
a family unit, Kimberly and she raised their two children as
coparents. And during the first year of Z.S.'s life,
Christina stayed home with him while Kimberly worked full
time. Christina further testified that the children-both Z.S.
and E.J.-share a close child-parent bond with her, and they
call her "Mom."
In January 2013, Christina and Kimberly separated. Following
the separation, Christina continued to visit both children.
She also paid child support, medical, and daycare expenses
On August 13, 2015, while still married to Christina,
Kimberly married a second spouse. Christina then filed for
divorce in the Harrison County Chancery Court on August 31,
2015. On November 16, 2015, Kimberly filed a motion for
declaratory judgment and complaint for divorce in the Rankin
County Circuit Court. In that motion, Kimberly sought a
declaration that her second marriage was valid and that her
first marriage was dissolved. Christina then filed her answer
and counterclaim for divorce in which she sought legal and
physical custody of the children, and to be named a parent of
Z.S. The Harrison County and Rankin County cases were
consolidated in Rankin County. And on May 17, 2016, an order
was entered declaring Christina's and Kimberly's
marriage valid, and Kimberly's remarriage void.
On September 27, 2016, Kimberly and Christina filed a consent
and stipulation agreeing that Z.S. was born during their
marriage, that they jointly would pay all school expenses for
Z.S., and that Kimberly would retain physical and legal
custody of E.J. Kimberly and Christina agreed to allow the
chancery court to decide custody, visitation, and child
support as to Z.S., child support and visitation of E.J., and
Christina's parentage of Z.S.
A hearing was held on September 27, 2016, and a final
judgment of divorce was entered on October 18, 2016. In the
final judgment, the chancery court made various findings.
Relevant to this appeal, the chancery court ordered Christina
to pay child support for both children, and held that Z.S.
was born during a valid marriage. But the chancery court held
that Z.S. was "a child born during the marriage, not of
the marriage, " and so both parties were not considered
parents. The chancery court found that the anonymous sperm
donor constituted "an absent father, " and even
though the donor might never be identified, the donor's
legal parentage precluded a determination that Christina was
Z.S.'s legal parent. The chancery court concluded that
Christina had acted in loco parentis to Z.S. and
awarded her visitation rights.
On October 21, 2016, three days after entry of the final
judgment, Christina filed her timely notice of appeal.
A chancellor's findings will not be disturbed on review
unless he abused his discretion, was manifestly wrong, or
made a finding which was clearly erroneous. Bank of
Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.
1992). A chancellor's conclusions of law are reviewed de
novo. Consolidated Pipe & Supply Co. v. Colter,
753 So.2d 958, 961 (Miss. 1999). Because the issues here
raise questions of whether a chancellor correctly applied the
law, we review this case de novo.
Parental Rights and Anonymous Sperm Donors
The chancery court's decision, finding Christina not the
legal parent of Z.S., turned largely on its determination
that the sperm donor was the "natural father, "
whose parental rights were subject to termination. On appeal,
Christina argues that this finding is not supported by the
evidence and is an erroneous conclusion of law. We agree.
At the outset, we are cognizant of the fact that we never
before have determined what parental rights, if any,
anonymous sperm donors possess in the children conceived
through the use of their sperm. As such, this is an issue of
In searching our state's existing law, the only law that
even addresses AI is the disestablishment-of-paternity
statute-Mississippi Code Section 93-9-10(2)(d) (Rev. 2013).
And while Section 93-9-10(2)(d) does not address anonymous
sperm donors' parental rights directly, we find it useful
as it illustrates the Legislature's intent on such
rights. Indeed, under Section 93-9-10(2)(d), a father cannot
seek to disestablish paternity when the child was conceived
by AI during the marriage to the child's mother. Reading
this provision, in light of the context before us, the
logical conclusion-while not explicit-is that the Legislature
never intended for an anonymous sperm donor to have parental
rights in a child conceived from his sperm-irrespective of
the sex of the married couple that utilized his sperm to have
How, on one hand, can the law contemplate that a donor is a
legal parent who must have his rights terminated, while at
the same time prohibiting the nonbiological father of a child
conceived through AI from disestablishing paternity? These
two policies cannot co-exist. And for one to make such a
logical leap effectively would say that the child has three
legal parents: the mother who birthed the child, the natural
father who donated his sperm, and the person who was married
to the child's mother (and is statutorily prohibited from
disestablishing paternity). Three parents-that cannot be what
the Legislature intended. Indeed, even the chancery court
here said that cannot be possible.
In making its determination, the chancery court seemed to
place great weight on the biological connection between the
anonymous sperm donor and Z.S. Yet the Supreme Court of the
United States has held that "[p]arental rights do not
spring full-blown from the biological connection between the
parent and child. They require relationships more
enduring." Lehr v. Robertson, 463 U.S.
248, 260, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (quoting
Cuban v. Mohammed, 441 U.S. 360, 397, 99 S.Ct. 1760,
60 L.Ed.2d 297 (1979) (Stewart, J., dissenting)) (emphasis
added). In a similar vein, we too have held that a biological
connection alone is not enough to establish parentage.
See Griffith v. Pell, 881 So.2d 184, 186 (Miss.
2004) (finding that a biological father does not have any
paternity rights where "he fails to establish that he
has had a substantial relationship with the child").
As a broader policy consideration, we find that requiring
parents of a child conceived through the use of AI 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. When children are involved, we
consistently have held that "the polestar consideration
. . . is the best ...