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Strickland v. Strickland Day

Supreme Court of Mississippi, En Banc

April 5, 2018

CHRISTINA STRICKLAND
v.
KIMBERLY JAYROE STRICKLAND DAY

          DATE OF JUDGMENT: 10/17/2016

          RANKIN COUNTY CHANCERY COURT HON. JOHN S. GRANT, III TRIAL JUDGE

          TRIAL COURT ATTORNEYS: PRENTISS M. GRANT DIANNE HERMAN ELLIS

          ATTORNEYS FOR APPELLANT: DIANNE HERMAN ELLIS ELIZABETH LYNN LITTRELL

          ATTORNEY FOR APPELLEE: PRENTISS M. GRANT

          ISHEE, JUSTICE.

         ¶1. 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 Z.S.[1] in 2011. Z.S. was born in Mississippi.

         ¶2. 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 Court.

         ¶3. 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 opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶4. 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., [2] 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.

         ¶5. In 2010, the newlywed couple decided to add to their family through the use of assisted reproductive technology[3] (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[4] (IVF) with Kimberly's ova.

         ¶6. 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.

         Christina testified that she was involved in and supportive through every step of the conception and pregnancy.

         ¶7. 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, [5] 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 certificate.

         ¶8. 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."

         ¶9. 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 for Z.S.

         ¶10. 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.

         ¶11. 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.

         ¶12. 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[6] to Z.S. and awarded her visitation rights.

         ¶13. On October 21, 2016, three days after entry of the final judgment, Christina filed her timely notice of appeal.

         STANDARD OF REVIEW

         ¶14. 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.

         DISCUSSION

         I. Parental Rights and Anonymous Sperm Donors

         ¶15. 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.

         ¶16. 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 first impression.

         ¶17. 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 that child.

         ¶18. 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.

         ¶19. 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").

         ¶20. 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 ...


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