## Facts

- Sha’Kayla St. Mary and Veronica Lynn Damon, former female partners, decided to have a child and executed a written co-parenting agreement.
- The child was conceived through in vitro fertilization using Damon’s egg and an anonymous sperm donor; St. Mary carried the pregnancy and gave birth.
- After birth, the parties lived together and shared caregiving; St. Mary initially acted as a primary caregiver.
- In a prior proceeding, Damon obtained an order recognizing her as a legal mother and permitting her to be added to the child’s birth certificate.
- After the parties separated, St. Mary filed to establish custody, visitation, and support based on her asserted parental status and the co-parenting agreement.
- Damon argued St. Mary was a surrogate or gestational carrier and that the co-parenting agreement was void under then-existing Nevada surrogacy law.
- The district court treated St. Mary as a surrogate, refused to give effect to the co-parenting agreement, and declined to consider whether St. Mary had parental rights.

## Issues

1. Whether the district court could determine, without an evidentiary hearing, that the woman who gave birth was merely a surrogate lacking parental rights despite Nevada’s parentage statute recognizing birth as a basis for motherhood.
2. Whether the parties’ co-parenting agreement allocating post-separation parenting responsibilities was void as unlawful or against public policy because the parties were a same-sex couple and the agreement resembled a surrogacy arrangement.

## Decision

- The Nevada Supreme Court reversed and remanded.
- The court held the district court erred by concluding without an evidentiary hearing that St. Mary was a surrogate with no legal rights.
- The court held the co-parenting agreement was not void as unlawful or against public policy, and the district court abused its discretion in deeming it unenforceable on the basis of the parents being of the same sex.
- The court directed further proceedings, including an evidentiary hearing on whether St. Mary was a legal mother under Nevada law or a surrogate/gestational carrier without parental rights.

## Legal Principles

- Under NRS 126.041(1), a mother-child relationship may be established by proof that a woman gave birth to the child.
- When a birth mother’s status is disputed (legal mother versus surrogate/gestational carrier), the issue presents factual questions requiring an evidentiary hearing; it cannot be resolved summarily based on labels or an incomplete record.
- A co-parenting agreement between two parents addressing post-separation custody and responsibilities is not void as unlawful or against public policy solely because the parents are of the same sex.
- A surrogacy statute limiting certain surrogate agreements does not automatically invalidate a co-parenting agreement where the gestational parent claims parental rights rather than disclaims them.

## Conclusion

The Nevada Supreme Court required factual development before stripping a birth mother of potential parental status and held that a same-sex couple’s co-parenting agreement cannot be rejected as unenforceable on public policy grounds tied to the parents’ sexual orientation, reversing and remanding for an evidentiary hearing and further custody proceedings.


St. Mary v. Damon, 309 P.3d 1027 (Nev. 2013)