Before the Court en banc. Opinion by Justice Saitta.
In this opinion, the Court considered issues relating to the custodial rights over a minor child born to two women who were formerly romantic partners. St. Mary gave birth to a child through in vitro fertilization using Damon’s egg and an anonymous donor’s sperm, and the child’s birth certificate originally listed only St. Mary as the mother; in 2009 Damon obtained an order establishing her maternity and adding her name to the child’s birth certificate. The couple also entered into a co-parenting agreement to share parental responsibilities, participate in child-rearing decisions, and pay for expenses. After St. Mary and Damon split, a dispute arose over St. Mary’s right to custody, visitation and child support. Damon contended that due to her biological connection, she was entitled to sole custody of the child, and in support of this contention, submitted the 2009 order. The Court held that the district court erred in using the 2009 order to conclude that St. Mary was a surrogate lacking any right to parent the child without giving St. Mary an evidentiary hearing. The Court reasoned that the Nevada Parentage Act permits a child to have two legal mothers, and establishes (through both the maternity and paternity provisions) various ways to determine a child’s legal mother. The Court remanded the case with instructions to the district court to conduct an evidentiary hearing on St. Mary’s legal right to parent the child. The Court further held that the co-parenting agreement was not void as unlawful or against public policy, indeed the Court stated that barring the enforceability of a co-parenting agreement simply because the parents were both of the same gender was contrary to the public policy of promoting a child’s best interest with the support of two parents. The Court held that the district court must consider the co-parenting agreement in determining custody should it determine after remand that both St. Mary and Damon are the child’s legal parents. Reversed and remanded for further proceedings. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)
