St. Mary v. Damon
129 Nev. 647
Nev.2013Background
- Two former partners, Sha'Kayla St. Mary (gestational carrier) and Veronica Damon (egg provider), agreed in writing to co-parent a child conceived by in vitro fertilization using Damon's egg and an anonymous sperm donor; St. Mary gave birth in 2008.
- They signed a co-parenting agreement stating they would jointly share parental responsibilities and maintain a relationship with the child if their romantic relationship ended.
- Damon filed an ex parte petition in 2009 to establish maternity and have her name added to the birth certificate; the court ordered that Damon is the child’s "biological and legal mother" and ordered amendment of the birth certificate but did not remove St. Mary’s name.
- After the couple separated, St. Mary filed for custody; the district court limited an evidentiary hearing to third‑party visitation, concluded St. Mary was a mere surrogate (no parental rights), and held the co‑parenting agreement void under NRS 126.045 (surrogacy statute).
- The Nevada Supreme Court reviewed de novo, concluded the district court erred by (a) determining St. Mary was a surrogate without an evidentiary hearing on parentage and (b) deeming the co‑parenting agreement unenforceable; it reversed and remanded for an evidentiary hearing on parentage, custody, and visitation.
Issues
| Issue | Plaintiff's Argument (St. Mary) | Defendant's Argument (Damon) | Held |
|---|---|---|---|
| Whether St. Mary is a legal mother or a surrogate/gestational carrier | St. Mary argues birth establishes legal motherhood under NRS 126.041(1) and she may be a co‑parent | Damon argues prior order and genetic link (her egg) establish her as sole legal mother and St. Mary was a surrogate | Remanded for evidentiary hearing; NV Parentage Act does not preclude two legal mothers and birth is a statutory basis for maternity, so parentage must be decided on evidence |
| Whether district court could limit hearing to third‑party visitation | St. Mary contends limitation denied her due process to litigate parentage/custody | Damon contends prior proceedings resolved mother status making only visitation relevant | Court held limitation was error because parentage was not previously resolved and needed full evidentiary hearing |
| Whether a child may have two legal mothers under Nevada law | St. Mary: NV Parentage Act permits non‑genetic or birth‑based maternity; two mothers possible | Damon: Statutory presumptions and prior order imply single legal mother | Court held NV law and policies permit two legal mothers (citing UPA‑based authorities); no legal barrier to two mothers in this context |
| Enforceability of the co‑parenting agreement | St. Mary: agreement sets parental intent and is not a surrogacy contract; enforceable if parents are legal | Damon: agreement is void under NRS 126.045 as a prohibited surrogacy/parentage contract | Court held agreement was not within NRS 126.045’s scope and is not per se unenforceable; court must consider it if both are found parents |
Key Cases Cited
- Rivero v. Rivero, 125 Nev. 410 (Nev. 2009) (parents may contract on custody; enforceability of parental agreements)
- Willerton v. Bassham, State, Dep't of Human Res., 111 Nev. 10 (Nev. 1995) (adoption of UPA model and public policy to protect parent‑child relationships)
- Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005) (both egg‑provider and birth mother can be legal mothers under UPA‑based law)
- KM. v. E.G., 117 P.3d 673 (Cal. 2005) (genetic and gestational roles can each establish maternity under UPA scheme)
- Mosley v. Figliuzzi, 113 Nev. 51 (Nev. 1997) (policy favoring support of two parents for child's best interest)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (presumption that fit parents act in child’s best interest)