St. Mary v. Damon

309 P.3d 1027 (2013)

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Nature of the Case

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Facts

St. Mary and Damon moved in together. They planned to have a child. Damon would have her egg fertilized by a sperm donor, and St. Mary would carry the fertilized egg and give birth to the child. Damon's eggs were implanted into St. Mary. Around the same time, Damon drafted a co-parenting agreement, which she and St. Mary signed. The agreement indicated that Damon and St. Mary sought to 'jointly and equally share parental responsibility, with both of [them] providing support and guidance.' In it, they stated that they would 'make every effort to jointly share the responsibilities of raising [their] child,' including paying for expenses and making major child-related decisions. The agreement provided that if their relationship ended, they would each work to ensure that the other maintained a close relationship with the child, share the duties of raising the child, and make a 'good-faith effort to jointly make all major decisions affecting' the child. St. Mary gave birth to a child and certificate of live birth listed only St. Mary as the child's mother. The child was given both parties' last names, however, in the hyphenated form of St. Mary-Damon. Nearly one year after the child's birth, their romantic relationship ended, St. Mary moved out of the home, and St. Mary and Damon disagreed about how to share their time with the child. St. Mary signed an affidavit declaring that Damon was the biological mother of the child. Damon filed an ex parte petition with the district court to establish maternity, seeking to have the child's birth certificate amended to add Damon as a mother. The district court issued an order stating that St. Mary gave birth to the child and that Damon 'is the biological and legal mother of said child.' St. Mary instituted the underlying case by filing a complaint and motion, in a separate district court case, to establish custody, visitation, and child support. Damon contended that, due to her biological connection, she was entitled to sole custody of the child. The court decided that it would only consider the issue of third-party visitation. The district court barred consideration of St. Mary's assertion of custody rights as she was only a surrogate. St. Mary was granted third-party visitation rights and denied any rights as a legal mother. St. Mary appealed. St. Mary argues that the district court erred in determining that, legally, she was a surrogate and not the child's legal mother and in deeming the co-parenting agreement unenforceable as a matter of law.