The Better Chancery Practice Blog

The law has always had to scurry along in the wake of technology, tidying up and redefining legal relationships affected by advances in science and medicine.

The latest instance arises out of the field of assisted reproductive technology, and addresses the issue of the parental rights of the anonymous sperm donor in the custody of a child born as a result of artificial insemination (AI).

Christina Strickland and Kimberly Day were married to each other in Massachusetts in 2009, and their marriage was later recognized in Mississippi, where they had taken up residence. In 2011, Kimberly was artificially inseminated and gave birth to a son, ZS. They separated in 2013, and were divorced in 2016, with custody of ZS being a contested issue. Following a hearing, the chancellor ruled that the child was born during the marriage, but that the parental rights of the natural father had not been terminated, thus precluding Christina’s claim to custody. Christina appealed.

In the case of Strickland v. Day, a case of first impression, a plurality of the MSSC held on April 5, 2018, that an anonymous sperm donor has no parental rights. Justice Ishee wrote for the plurality:

¶15. The chancery court’s decision, finding Christina not the legal parent of Z.S., turned largely on its determination that the sperm donor was the “natural father,” whose parental rights were subject to termination. On appeal, Christina argues that this finding is not supported by the evidence and is an erroneous conclusion of law. We agree.

¶16. At the outset, we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.

¶17. In searching our state’s existing law, the only law that even addresses AI is the disestablishment-of-paternity statute—Mississippi Code Section 93-9-10(2)(d) (Rev. 2013). And while Section 93-9-10(2)(d) does not address anonymous sperm donors’ parental rights directly, we find it useful as it illustrates the Legislature’s intent on such rights. Indeed, under Section 93-9-10(2)(d), a father cannot seek to disestablish paternity when the child was conceived by AI during the marriage to the child’s mother. Reading this provision, in light of the context before us, the logical conclusion—while not explicit—is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived
from his sperm—irrespective of the sex of the married couple that utilized his sperm to have that child.

¶18. How, on one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the nonbiological father of a child conceived through AI from disestablishing paternity? These two policies cannot coexist. And for one to make such a logical leap effectively would say that the child has three legal parents: the mother who birthed the child, the natural father who donated his sperm, and the person who was married to the child’s mother (and is statutorily prohibited from disestablishing paternity). Three parents—that cannot be what the Legislature intended. Indeed, even the chancery court here said that cannot be possible.

¶19. In making its determination, the chancery court seemed to place great weight on the biological connection between the anonymous sperm donor and Z.S. Yet the Supreme Court of the United States has held that “[p]arental rights do not spring full-blown from the biological connection between the parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (quoting Cuban v. Mohammed, 441 U.S. 360, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (Stewart, J., dissenting)) (emphasis added). In a similar vein, we too have held that a biological connection alone is not enough to establish parentage. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (finding that a biological father does not have any paternity rights where “he fails to establish that he has had a substantial relationship with the child”).

¶20. As a broader policy consideration, we find that requiring parents of a child conceived through the use of AI to terminate parental rights of the donor would not be in the best interest of the child—to say nothing of the expense and time it would require. When children are involved, we consistently have held that “the polestar consideration . . . is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

¶21. The consequences of assigning rights to donors, who do not engage in an act of procreation but provide biological material with no intention to act as a parent, would disrupt the familial relationships and expectations of Mississippians who have conceived children through the use of AI. For one, it would elevate the rights of a donor—who is a complete stranger to the child, and likely never will be identified—over the rights of a person who has known and cared for the child. Make no mistake—affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy—perhaps creating a chilling effect on sperm donation. Furthermore, it effectively would leave many children conceived through this method with one legal parent. And in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding—it would leave the child an orphan. Such a notion is untenable and certainly contrary to the public policy of this state.

¶22. On appeal, Kimberly’s position is that all of the nonbiological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoption process. We disagree. As a practical matter, the process of requiring one under these circumstances to adopt her own child (one which she intentionally agreed to bring into the family) would be intrusive, time-consuming, and expensive. In fact, it would require: parents who use AI with anonymous sperm donation to file a petition and wait thirty days to seek a hearing; a guardian ad litem to be appointed by the court at the parents’ expense; and a hearing to be held to determine whether an
unknowable sperm donor has abandoned the child. See Miss. Code Ann. § 93-15-107 (Rev. 2013).

¶23. One of the rationales behind termination statutes no doubt is to safeguard the rights of any potential parent-child relationship. Indeed, this Court has held that “[p]arents have a liberty interest, more precious than any property interest, in the care, custody, and management of their children and families.” G.Q.A. v. Harrison Cty. Dep’t Of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. at 753–54, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The seriousness of the action is reflected in the fact that termination of such rights requires clear and convincing evidence of the statutory grounds for termination. Chism v. Bright, 152 So. 3d 318, 322 (Miss. 2014) (citing Kramer, 455 U.S. at 754).

¶24. But with anonymous sperm donors there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an “absent father,” but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him. It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor’s identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.

¶25. The impracticality and futility of applying the termination statute in this context is clear. Under Section 93-15-107, the natural father is a necessary party to such termination action, but here, or with any anonymous donor, whose identification cannot be known, compliance with the statute arguably is impossible. One cannot serve a party with no information to act upon and which likely never can be acquired.

¶26. To that end, Kimberly argues that Christina, and nonbiological parents alike, can effectuate this service though publication. To be sure, the text of the statute does allow for publication of service of a “necessary party whose address is unknown after diligent search[.]” Miss. Code Ann. § 93-15-107(1)(b) (Rev. 2013) (emphasis added.) Publication in this instance is for a party whose address is unknown, not a party whose identity is
unknown. (Emphasis added). What is more, how can it be evaluated whether there was a diligent search for the party, if the party is unknown? The chancery court itself conceded that it is unlikely that the donor ever could be hailed before the court. The chancery court also conceded that this donor’s identification likely would never be known. And with an absence of identification, publication practically cannot be effectuated in every case in which a couple utilizes AI to bring a child into the family. Indeed, publication under the statute presupposes that, while one may not know the exact location of the party, one at least knows, at a minimum, the identity of the party. This is not to say that, under these circumstances, service by publication could not be accomplished; it is, however, to say that, as a matter of public policy, we find it unwise to demand that it must be accomplished.

¶27. And so, we ask, would it not be futile for the chancery court to require parties to comply with a statute the chancery court itself admits cannot be satisfied due to reasons beyond the control of the parties? Though this exact question is not before us here, we find it demonstrative of the impracticability and futility of requiring compliance with Section 93-15-107(1)(b) in this context.

¶28. Aside from our determination that anonymous sperm donors, in general, do not possess parental rights in the children conceived through the use of their sperm, we also find that there is no other vehicle which allows us to conclude that the anonymous sperm donor here is Z.S.’s parent. The donor was not married to the mother at the time of Z.S.’s conception or birth, he has not executed a voluntary acknowledgment of paternity, and he has not been adjudicated to be the child’s “natural” father under state law. Miss. Code Ann. § 93-9-28 (Rev. 2013).

¶29. In sum, we find that the chancery court erred in finding that an anonymous sperm donor was Z.S.’s parent whose parental rights had to be terminated. Indeed, we find that there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.

Some thoughts:

• This decision has limited precedential value since it is a plurality decision. But a majority broadly agree that the chancellor erred in ruling that the parental rights of the sperm donor had to be terminated as a prerequisite to a custody contest between the parties, so I would surmise that future litigation over the same issue will result in an outcome similar to this.
• Justice Waller’s separate opinion points out that the legislature needs to address this issue. He’s right, since there is no statute directly on point.
• I am uncomfortable with the language in the opinion that talks about the impracticality of requiring process on the sperm donor. Our court should not put a price, so to speak, on due process. Notice and an opportunity to defend are required in a wide range of cases — including those involving unknown fathers — without regard to the difficulty or impracticality of process. I agree that a sperm donor should not be required to be made a party to the litigation in AI cases; however, impracticality of process would not be a component of my rationale were I called upon to decide the case.
• What cost the plurality a majority is the plurality’s treatment of equitable estoppel in the opinion beginning at ¶30. The dissenters take the position that since the equitable estoppel issue was never squarely presented to the chancellor, it is improper to take it up on appeal. On this I agree with Justice Coleman that it was unnecessary to address it. I would have ended the opinion at ¶29.
• I found it interesting that the fact that this case arose out of a same-gender marriage was only mentioned in passing and played no part in the ultimate outcome. That is an indication that Obergefell has been absorbed into our law.