JACKSON, Miss. — The Mississippi Supreme Court is set to rule on a case involving two “divorced” women who are locked in a custody battle as one of the women contends that she should also be recognized as the child’s mother, even if she is not the biological parent.

Christina Strickland is seeking equal custody of Kimberly Day’s six-year-old son Zayden, who was conceived in 2011 via artificial insemination while they were in a lesbian relationship. The two, which had “wed” in Massachusetts in 2009, separated in 2013 and officially were “divorced” last year. Day went on to marry a man.

During the divorce proceedings in October 2016, Rankin County Chancery Judge John Grant gave sole custody of Zayden to Day, stating that while the boy was “a child born during the marriage” he was not “a child born of the marriage.” Read the ruling here.

“Zayden has got a natural father somewhere,” he wrote. “The court hasn’t seen anything placed before it to show that the natural father’s parental rights have been terminated. 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.”

“That the court therefore concludes that Zayden is a child born during the marriage, not of the marriage, because the conception of Zayden is impossible between two females,” Grant continued. “The court concludes there is a natural father. The natural father may never come into court. He may never be known, and probably won’t be, but he is still a father; and that is a right that our Supreme Court has recognized for many, many years.”

While he concluded that Strickland does indeed have rights to visitation as she had a “bond” with Zayden in helping to care for him—and ordered her to pay child support—Grant gave sole custody to Day.

Strickland says that after Day married a man in 2015, she stopped allowing her to see Zayden and a teenage boy that Day adopted in 2007. She believes that the courts should grant 50-50 custody, and says she tried to have her name placed on the child’s birth certificate when he was born, but was disallowed under state law.

The case recently went before the Mississippi Supreme Court, which will now decide the matter.

“This child really needs to have a legal relationship to both people who brought him into the world and who he knows and understands to be his only parents, not some anonymous sperm donor,” Strickland’s attorney, Beth Littrell, told the court, according to ABC News.

Day’s attorney, Prentiss Grant (no relation to the judge) argued that sperm donors do have legal rights and that those who did not biologically create the child would be more of an adoptive parent.

“This is basically a middle situation where we have a marital unit but we do not have a biological connection,” he said.

Strickland could have sought to terminate the rights of the sperm donor as father and then adopted the child, Grant noted, but that didn’t happen.

“This case is not an equal protection case or a presumption of marriage case. It is an assisted reproduction case. The main question here is simple: whether a couple, same-sex or opposite-sex, who conceives and has a child through assisted reproduction technology using donor sperm, donor egg, or a surrogate mother should be required to follow existing law and terminate the parental rights of the donor or surrogate. The answer is a resounding yes,” he also stated in written argument.

As previously reported, a similar case occurred in 2006 when then-Vermont resident Lisa Miller and her partner Janet Jenkins “divorced” and Jenkins was granted visitation rights surrounding the four-year-old girl that Miller conceived via in vitro fertilization.

Miller, who disavowed homosexuality and professed her faith in Christ, soon sought to discontinue visitations due to various concerns. After moving out of state, she obtained a court declaration that she was the sole parent as civil unions were not recognized in Virginia, but Jenkins was successful on appeal in regaining visitation rights.

Miller still refused to allow visitations as she did not want her child exposed to homosexuality, and was threatened by a Vermont judge that if she did not permit Jenkins to see the girl, full custody would be transferred to Jenkins. By the time that the judge officially ordered the transfer, however, Miller had already fled the country with her daughter. She has not been seen since.

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