Steven H. Snyder & Associates Attorneys at Law

New technology: Both moms play role in bringing child into the world

As technology, science, and medicine continue to evolve, so are the ways same-sex couples can grow and expand their families.

In one reported case, two mothers got to both experience what it is like to play a role in carrying their child, a now happy 9-month-old. The couple went through a fertility procedure called reciprocal effortless in vitro fertilization, also commonly called in vivo fertilization.

After their baby was born, another same-sex couple also welcomed a baby girl after going through the same procedure.

Behind the process: Understanding in vivo fertilization

The process is like traditional in vitro fertilization, only instead of the eggs and sperm going into an incubator in a lab, the sperm and eggs are placed into a device. In the case of the two moms, the same woman who had her eggs harvested went on to carry the device for the five-day incubation period.

It is during the incubation period where early embryo development starts. After five days, the removal and freezing of the embryos took place. The embryos were transferred from the body of the woman who provided the eggs to her wife’s body. The embryos then implanted into the wife’s uterus,, and the wife carried their son for the next nine months until delivery.

This means one woman got to play a role in the fertilization part of the process – as she was carrying the device the sperm and eggs were in – while the other woman handled the gestation, carrying the child for the nine months of pregnancy.

The couple also have two other frozen embryos they could use in the future if they want more children. However, they could decide to do the same process – only in reverse -- with the woman who gestated the child this time being the one to go through egg retrieval and initial incubation in the future.

Behind the law: Understanding the legalities protecting parental rights

While it is certainly wonderful that both moms got to play a significant role in bringing their child into this world, it is important to remember that the child only has a genetic tie to one of the moms – the mom who went through egg retrieval and initially held onto the device during the incubation period – and the non-genetic wife is the birth mother. 

Each state views and has laws that create presumptions and establishment of parentage in different ways.  In some states, the birth mother is the legal mother – period.  In others, the genetic mother may be the mother.  In yet others, the two mothers may have joint or competing claims for legal parentage.  Such issues must be identified and a legal strategy formed for making both women legal parents in every state before the procedure is started. 

Simply put, when it comes to same-sex couples and their children, legal issues can quickly arise without the clear establishment of parental rights. It is best to start this process from the very beginning.

Unfortunately, the laws are years behind when it comes to protecting the parental rights of same-sex couples. Even more complicating is the fact that each state tends to do its own thing. This means that while a friend in Arizona may have taken certain steps to establish and protect their rights as a parent, someone living in Minnesota should not assume the process is the same.  Any aspiring parents intending to use this process should consult an experienced attorney in advance about any such issues.

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