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Christina Strickland left and her attorney Elizabeth Littrell right spoke with reporters outside the Mississippi Supreme Court after oral arguments in ther same-same marriage parental-rights case on Wednesday, Nov. Photo by Arielle Dreher.
Same-sex marriage was illegal at the time and would be legal untilso the couple went to Massachusetts to get married. They adopted their first son in before they were married, but after their marriage inthey wanted to have of their own. For same-sex couples, this can mean using assisted reproduction technology.
The couple decided on a sperm bank in Maryland, and Kimberly decided to carry the. She received insemination treatments in Louisiana and gave birth to the couple's son, called Z. Later the couple separated, but Christina Strickland was never named a legal parent of their son, Z. Her attorney, Elizabeth Littrell, argues that this is in part because the State of Mississippi discriminated against same-sex couples at the time. Only Kimberly Day, who has re-married, is listed on the birth certificate. During the divorce, Strickland was awarded visitation—not custody—of the couple's two sons as well as a status called "in loco parentis" which gives her some responsibilities of a parent, still short of legal parenthood.
In OctoberRankin County Chancery Court Judge John Grant, while granting their divorce, ruled that the marriage of the mothers was not the pivotal issue—instead focusing on the conception of the child and his father. Our Supreme Court has been very, very strict about parental rights and absent fathers. And there is a natural father somewhere of Z, whose parental rights have not been terminated," Judge Grant wrote in his October divorce order. The Court finds two women cannot conceive together," he continued.
The court reasons it is impossible for two women to conceive and that conception must occur between a man and a woman. That the Court therefore concludes that Z is born during the marriage, not of the marriage, because the conception of Z is impossible between two females.
Strickland appealed to the Mississippi Supreme Court after the ruling, and Littrell told justices last week that Strickland wants the court to reverse Grant's decision and declare Christina a legal parent of Z. Not even two minutes into Littrell's presentation, Chief Justice Bill Waller asked her why the State was not a party in the case if Christina wanted to be added to the birth certificate. Littrell argued that her client was not asking to be added to the birth certificate but instead asking the court to recognize that Z was born into a legal marriage with two legal parents.
She argued that Christina would have been on the birth certificate if Mississippi did not discriminate against same-sex couples at the time. Littrell said that the Mississippi Supreme Court's ruling in the case could affect thousands of children in the state born to same-sex and opposite-sex couples who use assisted reproduction technology to have children.
Do they have the right to two parents, or are we going to treat them as illegitimate? The court is empowered to recognize a common-law rule that says when children are born to a married couple that used assisted reproduction and anonymous donated sperm, those children are deemed in law legitimate. And there are a of sister courts, where there is no statutory guidance, that come to this conclusion that protects the family, protects the child, that ensures that the child doesn't become a ward of the state.
Z will not become a ward of the state in Christina and Kimberly's particular case, Justice Michael Randolph pointed out, but Littrell argued that allowing Judge Grant's ruling to stand is an "inherently unjust and unnecessary result. Prentiss Grant, who represented Kimberly in the arguments, told Supreme Court justices that Christina did not use a legal tool that he says could have remedied her parental-rights predicament.
Grant argued that the case was not about what artificial reproduction means around the country but instead about following state law regarding the procedure. This would mean Strickland would have to issue a public notice trying to find the sperm donor, whom the couple knows only as Donor No. Justice Dawn Beam took particular issue with Grant's request, believing that it could violate the U. Supreme Court's ruling in Obergefell v. Hodgeswhich legalized same-sex marriage nationally.
Beam also said the ruling in the Pavan v. Smith appeal to the U. Supreme Courtwhich said Arkansas' law that "require d the placement of the birth mother's husband on the child's birth certificate" violated the Obergefell decision, also affects the case. That ruling essentially aled to lower courts that Obergefell applied to birth certificates in Arkansas and elsewhere. Grant said it is up to the Legislature to change the part of state law that says a father cannot terminate parental rights if is conceived by artificial insemination.
Grant said no, but returned to his argument that Christina and other parents in similar situations could terminate the sperm or egg donor's parental rights and then become legal parents. The U. Supreme Court issued their opinion in the Pavan case after Judge Grant granted his divorce judgment for Christina and Kimberly, so the Mississippi Supreme Court will have to decide how to apply Obergefell and Pavan to Strickland's case.
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