A lesbian who divorced her wife is appealing a Rankin County judge’s decision refusing to list her on her son’s birth certificate or grant her joint custody because, he wrote in a recent opinion, two women are unable to conceive a child and the boy, conceived through in vitro fertilization, “has got a natural father somewhere.”
In the final divorce decree, Judge John S. Grant III wrote: “The court questions: Is the natural father not Zayden’s father, even though he is an absent one? The court is of the opinion the natural father is Zayden’s father.
“The court also questions: Can Zayden have three parents? Both these ladies are married to each other and the father? The Court is of the opinion the answer is no.
“The court finds two women cannot conceive a child together. The court does not find it (sic) opinion to be a discriminatory statement but a biological fact.
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“The Court reasons it is impossible for two women to conceive a child and that conception must occur between a man and a woman.”
The judge limited Christina Strickland to visitation with the boys, a 16-year-old and a 5-year-old. She was seeking joint custody of the younger child but said she did not have the legal option for joint custody of the older boy.
Strickland said she and Kimberly Day had been together since 1999. They adopted their oldest son in 2007 and married in Boston in 2009, years before the June 2015 U.S. Supreme Court decision that legalized same-sex marriage nationwide. The state of Mississippi would not allow both women to be listed as parents on the adoption certificate, Strickland said, so Day is listed as the legal mother of their oldest son.
Day carried the son conceived with sperm bought from an in vitro fertilization bank and born in 2011. Strickland said the couple separated in January 2013, while they were living in Pass Christian. Strickland said she did not see her sons for 13 months.
Only Day’s name is on the birth certificate. Grant ruled that he had no authority to add Strickland’s name, as she requested.
Strickland’s attorney, Dianne Herman Ellis of Ocean Springs, said she will be appealing to the state Supreme Court to add Strickland’s name to the birth certificate. If Strickland’s name is added, she could then return to Chancery Court on the issue of joint custody, Ellis said.
“If she were a man and her wife conceived a child through in vitro fertilization with another man’s donor sperm, the husband would automatically be the father of that child,” Ellis said. “Chris was denied that privilege simply because she is female.”
Ellis said she knows other couples in the same situation. As long as they stay together, there is no problem, but if one dies, or they divorce, they could face the same issue. She believes the Supreme Court needs to resolve it.
“I don’t think there’s any way for the Mississippi Supreme Court to rule on this than to put her name on the birth certificate,” Ellis said. “Otherwise, the Supreme Court would have to bastardize every child born in Mississippi, even to a man and a woman, who was conceived with donor sperm.”
Grant acknowledged that the children have a bond with Strickland and that she has shared the responsibility of raising them. He said the oldest child should be involved in deciding how often he visits with Strickland. He set up a visitation schedule for the youngest child. Strickland gets him every other weekend and, this year, for a week at Christmas.
Prentiss M. Grant of Brandon, who is not related to the judge, represents Day. He said the judge also decided Day was the parent more fit to maintain legal and physical custody of the children.
Regarding the birth certificate and addition of Strickland’s name, Grant said: “We are going in very new, different areas that have never been approached before. Any time you have a major change in the law, people don’t realize how it affects other areas of law.”