State Supreme Court must decide, ‘Who’s your Mama?’

The tough question used to be: "Who's your Daddy?" But now the Nevada Supreme Court has to decide an even tougher question: "Who's your Mama?"

It's an intriguing case because of uncharted legal waters, at least in Nevada. The issues are complex; otherwise it wouldn't be heard by all the justices today at 10 a.m. in Carson City.

Like many others, this started as a love story and ended as a custody battle.

Veronica Damon and Sha'Kayla St. Mary met on the job as correctional officers at the Southern Nevada Women's Correctional Center in Las Vegas and became lovers in August 2006.

The two women moved in together 13 months later and decided to have a child together. They signed a co-parenting agreement which clearly showed their intention was for both of them to be mothers.

Damon would donate the egg, there would be an anonymous sperm donor and the fertilized embryo would be implanted in St. Mary. A daughter, now 6, was born. Her last name on the birth certificate was a hyphenated "St. Mary-Damon." The couple's intentions seemed clear. Eleven months later, the women split up.

If this were a husband and wife, each likely would have shared custodial rights and this wouldn't be a Supreme Court case. But Nevada law doesn't include such clear laws when it comes to gay couples, since marriage is defined here as between a man and a woman.

Damon sought sole custody of the child, taking the position that St. Mary, the birth mama, was a surrogate, not a co-parent.

Senior Judge John Bonaventure decided this isn't an issue of custody; it's an issue of third-party visitation under laws which give the parent discretion of visitation rights.

He decided St. Mary could have the child one day a week.

He also decided their co-parenting agreement was not valid and that St. Mary must not fixate "on the legal fiction that she is the mother."

St. Mary wants more time with the child she brought to term. She appealed to the Nevada Supreme Court, which must decide:

■ Is St. Mary a legal mother under the Nevada Uniform Parentage Act?

■ Was the co-parenting agreement enforceable?

■ Did Bonaventure abuse his discretion by limiting the evidentiary hearing to the issue of third-party visitation instead of custody?

From my common sense viewpoint, the answers are yes, yes and yes. But I'll concede the law is unclear.

Attorney Bradley Schrager, representing Damon, will argue today that the Legislature needs to make clear laws for such situations. He has said Bonaventure's decision that St. Mary was a surrogate strips her of any rights as a legal parent.

"Under Nevada law, same-sex gestational surrogates do not enjoy parental rights," Schrager wrote.

It's up to the Legislature if that should be changed in today's ever-evolving world defining marriage and domestic partnerships. (The couple did not file as domestic partners, which is legal in Nevada and might have strengthened St. Mary's legal position.)

Attorney Joseph Nold, representing St. Mary, cited the co-parenting agreement which clearly showed there was no intent for St. Mary to be a surrogate, but to be a mother with full parental rights.

It bounces back to "Who's your Mama?"

I've quizzed people about this case if the option is limited to either/or, the answers are divided between the woman who donated the egg and the woman who carried the child.

The most balanced answer came from a mother of three who said the two women should have equally shared custody.

But then she asked the much larger question: What's best for the child?

If you want to watch the arguments, they can be live-streamed on a computer today through the state Supreme Court's website at www.nevadajudiciary.us

Jane Ann Morrison's column appears Monday, Thursday and Saturday. Email her at Jane@reviewjournal.com or call 702-383-0275. She also blogs at lvrj.com/blogs/morrison.