Fertility treatments and IVF have come a long way since the first IVF baby was born in England in 1978. And with all those changes, lesbian and some non-binary couples now have greater options for family building, with the use of RIVF on the rise. Reciprocal IVF (RIVF) or “co-maternity” is a great way for both partners or spouses to be involved in their child’s conception story—as one person’s eggs are used and fertilized outside the body with donor sperm, and then transferred to the other person’s uterus to gestate and give birth. But once you’ve gone through all that, who has the legal parental rights? The genetic parent? The gestating parent? The donor? What needs to be done?
I am sure in this post-Dobbs world we now find ourselves in (thanks Supreme Court!), people are learning more and more that where you live matters and state laws control a whole lot when it comes to our bodies and our families. Determining parental rights and who has to do what in order to best safeguard our families of course falls into that and is very dependent on which state you live in and the laws of that particular state.
Legal parentage affects who can inherit, who can make medical decisions, who can potentially visit a sick loved one in a hospital room, who is financially obligated to a child, whose benefits can and should cover a child, the right to social security death benefits, who can seek custody or visitation after a split, and more. In short, it matters. It is not something that should be left unprotected
I practice law in the State of New York. And in NY, if you’ve gone through RIVF to have your children, the gestating parent who gives birth to a child is the one with the legal rights (and obligations) to that child and is the “legal parent”. The non-gestating parent who contributed their egg and is the one with the actual genetic, DNA connection to the child is the one without legal rights. Counterintuitive—I know! While medicine has come a long way, the law often lags behind and here in NY, the genetic connection isn’t as legally significant as who has actually given birth. And don’t be fooled! Spouses—even if both are on the birth certificate—are NOT both legal parents based on that alone.
However, that doesn’t mean there is nothing the egg-contributing parent can do. In fact, as of February 15, 2021, in NY LGBTQ+ and specifically same-sex female (or non-binary) couples have more legal options than ever to secure their legal parentage to their children when both partners—as very clearly is done with RIVF—planned their family together. In NY, the genetic but non-gestating person has an option now to petition the court for a Judgment of Parentage to confirm their legal parental rights and obligations, which for those eligible is a more streamlined and far less invasive and onerous process than adoption. Or alternatively—whether due to ineligibility or a preference—the genetic but non-gestating person still has the option of petitioning the court for an Order of Adoption as a Stepparent (if married) or a Second Parent (if unmarried).
In Pennsylvania, the genetic but non-gestating person who used RIVF would generally pursue Second Parent Adoption to establish their legal parentage. Maine deals with it in a similar way. In Michigan however, it is a bit different. There was a 2021 Michigan case with a legal debate over whether a lesbian partner who gave birth to twins after RIVF and was on the birth certificates and raised the children for several years with her partner was in fact a legal parent or was merely a “surrogate” with no rights. A Michigan lower court found the gestating parent to have no legal parental rights. (https://www.lgbtqnation.com/2021/04/court-tried-erase-lesbian-mom-childrens-birth-certificates/ )
As you can see, each state treats things differently, but one thing remains—securing legal parentage is crucial and when using RIVF, it may not be immediately clear who has the rights and who doesn’t. So when building a family using RIVF, speak to a family formation attorney (ART attorney) in the state where you live so you know your available options and which spouse/partner should be the one to petition the Court for an Order entitled to full faith and credit, to best secure legal parentage and reflect what you intended all along, especially when going through RIVF—to both be equal legal parents to and for your children.
**This is intended for informational purposes only and not intended to be construed as legal advice. Every situation is unique and the laws of every state differ. Contact the Law Office of Jennifer P. Maas, PLLC (www.JPMfertilitylaw.com) should you wish to discuss the specifics of your situation and to hire our firm to represent you in New York, or speak to an attorney licensed in your state.**