Same-Sex Custody Fights Challenge Biological Parenting Rights

A legal clash over gay custody rights recently reached the Mississippi Supreme Court as numerous lawsuits work their way through the nation’s judicial system.

In the Mississippi custody case, a legally married and then divorced lesbian couple are embroiled in a lawsuit that pits traditional reproductive rights against same-sex marriage. Many such cases have been rising through the appellate court ranks as fallout from the U.S. Supreme Court’s decision in the landmark Obergefell case that made same-sex marriage the law of the land.

Since the Obergefell ruling, same-sex couples relying on donor eggs, sperm, vitro fertilization and surrogacy have given birth to children under the marital umbrella. However, the long-standing state laws regarding parental rights and obligations refer primarily to biological primacy first and foremost. This application of the law has resulted in courts granting parental rights to the biological mother and father, if practical in lesbian birth cases.

Political advocates for LGBT rights have backed same-sex custody lawsuits claiming that the revised definition of marriage automatically alters the previous reproductive-based parental rights. Advocacy groups argue that same-sex couples should share equally in child custody benefits and obligations despite the lack of blood connection after a marriage has been dissolved.

In the recent Mississippi case, Christina Strickland and Kimberly Day were together for about two years before Day gave birth to a son. She was inseminated with an anonymous donor’s sperm. The couple ran into irreconcilable differences after just four years and a lower court ruled in favor of Day retaining full and sole custody as the biological mother.

At the time of the decision, the child was 6 years old and the court indicated that Strickland enjoyed no legal parental rights because she was not a blood relation to the boy. The court went on to articulate that should the anonymous sperm donor emerge, he could and would be granted parental rights. The lower court appeared to err on the side of caution by avoiding a situation that could negatively impact a child by potentially having three legal parents.

“The court finds two women cannot conceive a child together,” Rankin County Chancery Judge John Grant reportedly concluded in his ruling. “The court doesn’t find its opinion to be a discriminatory statement, but a biological fact.”

The 44-year-old Strickland appealed the court’s decision.

During oral arguments before the Mississippi Supreme Court, legal counsel for Strickland insisted that the high court confirm that she enjoyed legal parental rights based on the Obergefell decision that affirmed same-sex marriage. Her attorney attempted to draw a line between gay rights outlined by the U.S. Supreme Court and equal treatment in terms of parental rights. The lawyer went on to insist that Strickland be added to the child’s birth certificate immediately, despite the fact the hospital had previously declined this request.

“Whether you are married to the same sex or not, an anonymous sperm donor should never trump the parental rights of spouses, whether same or different sex, who plan for, provide for, care for, and love their children,” Beth Littrell, Strickland’s attorney reportedly said in a related interview.

In sharp contrast, Day’s attorney pointed out to the court that Strickland had failed to take legal action to adopt the child during the marriage. Day’s attorney argued that the ex-spouse never moved forward to terminate the anonymous sperm donor’s biological parental rights and proceed with a lawful adoption. These options were available to Strickland before the divorce petition was filed.

In a counter-argument that may resonate through other same-sex custody cases, Strickland’s lawyer claimed she enjoyed the “presumption of paternity” based on her legal marital standing at the time of the birth. That standard has been widely applied to marriages between men and women and additional paternity determinations are generally required to remove a husband from a child’s birth certificate.

“We have gone from the presumption of something that was almost always going to be true in any case to presuming something that cannot possibly be true,” Peter Sprigg, from the Family Research Council reportedly claimed. Sprigg also argued that the implications of the homosexual parenting movement are absurd.

However, rulings in several states appear to be trending toward same-sex parental rights. In Arkansas and Arizona, same-sex couples have been named the parents on birth certificates and presumptive parents. States such as Colorado, New Jersey and New York, view the same-sex couples as “caretakers” who have a lawful agreement to jointly raise children.

A ruling by the Mississippi Supreme Court has yet to be rendered. Appeals regarding same-sex parental rights are expected to reach the U.S. Supreme Court in the coming years.

~ Christian Patriot Daily