Family Law

2 Women Were Pregnant With The Same Baby – What Does That Mean Legally?!

While science is advancing, the law is falling behind. You still need to protect both parents beyond just the birth certificate.

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Medical advances in human reproduction are taking major leaps every day. In the latest jaw-dropping development, two women are now able to gestationally carry (aka be pregnant with) the same baby. Yes, I am totally serious. This was possible for Ashleigh and Bliss Coulter, a same-sex female couple from Texas. The Coulters are believed to be the first same-sex couple in the world to gestationally carry the same child. How was this even possible?!

A Lawyer Attempts To Explain Medical Stuff.

The couple participated in something termed “Effortless IVF.” To be honest though, it actually does sound kind of effortful. Still pretty groundbreaking, however.

In the procedure, eggs are retrieved from one of the women, in this case Bliss. The eggs are then combined with donor sperm in a little capsule called the InvoCell (here are some images to give you a visual). Traditionally, with in vitro fertilization (IVF), the fertilized eggs would be kept in a Petri dish in a lab to grow for several days. But with Effortless IVF, the InvoCell is actually transferred into the uterus of one of the women, here Bliss’s uterus, secured by a diaphragm, and left there for approximately five days to develop in an environment closer to natural conception. After that, the capsule with the embryos is then removed, the embryos cryopreserved, and then one is transferred to the uterus of the same or another woman. With the Coulters, Ashleigh then received an embryo, and did the heavy lifting, gestating the baby to birth. But that baby, as a tiny embryo, had first been carried by Bliss, and thus both women had been pregnant with the same child. Wow.

Are They Both Legal Parents Of The Child?

Since you are reading a legal blog, I’m sure you are dying to know the legal implications of this medical leap. Well, this procedure isn’t far off from a not uncommon procedure for same-sex female couples called “reciprocal IVF” — where eggs are retrieved from one woman, fertilized in vitro (in a lab) with donor sperm, grown for a few days in a Petri dish (soon to be “the old-fashioned method”) instead of in one of the parents-to-be, and then transferred to the uterus of the other woman. In this scenario, and that of the Coulters, one woman is genetically related to the child, and the other gives birth to the child. So do both women count as legal parents?

I interviewed Amira Hasenbush, a California assisted reproductive technology (ART) law attorney and the author of a recent illuminating article called “But I’m on the Birth Certificate! Why A Birth Certificate Alone Is Not Sufficient Protection of Your Legal Parentage Rights.” Hasenbush explained that this scenario of two women with legal parentage rights to the same child is often referred to as co-maternity. If the couple is married, like the Coulters, the person giving birth will be a legal parent of the child, and the spouse of the birth parent, regardless of their gender, will be presumed to be the second parent of the child. Both spouses should be listed as the parents on the child’s birth certificate. However, as subtly hinted at by the title of Hasenbush’s recent article, that may not be sufficient legal protection for both parents.

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Hasenbush warns that “while science is advancing, the law is falling behind. You still need to protect both parents beyond just the birth certificate.” Most jurisdictions favor legal rights of the woman giving birth, leaving the partner in a same-sex couple  — whether genetically related to the child or not — in a more precarious legal position. This is especially true if the couple is not married. The birth certificate, while affirming of both women’s parental status, lacks the force of a court order and does not have to be recognized in other jurisdictions. We have seen this play out where another state ignored who is named on a birth certificate, or a birth mom, when a relationship has gone south, tries to deny her ex legal rights to their child. If nothing else, getting a judgment while everyone is happy, healthy, and willing to work together can be much simpler and less painful than trying to secure the same thing in the event of relationship discord or a medical emergency.

Hasenbush advises her same-sex couple clients to secure their parental rights either with an adoption or confirming parental judgment, depending on their situation. While adoption may be considered the gold standard, it may be less of a fit or create problems in some situations. (For example, if there were Native-American heredity issues in which an adoption might trigger the Indian Child Welfare Act, an adoption may create more problems.) Parentage recognized by court order, whether through adoption or a parentage judgment, are constitutionally required to be recognized in all other U.S. jurisdictions.

I am excited for the advances in medicine and the new doors being opened. However, for new parents, especially those in same-sex couples, the law is frequently falling behind. I recommend consulting Hasenbush, or an attorney in your jurisdiction, to be sure your recognition as a parent is not at risk.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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