Family Law

What Happens When A Father Claims The Mother Is Only A Gestational Carrier And That He Alone Is Both Father And Mother Of The Children?

The allegation of switched reproductive material, without the knowledge or consent of the mother, is incredibly disturbing.

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family court divorce matrimonial law photo by David Lat

(Photo by David Lat)

Loyal readers of this column know that I rarely pass up the chance to write about an interesting surrogacy case. This case, however, is not actually a surrogacy case, at its core. However, it definitely involves assisted reproduction, and some concerning allegations.

In a January 6, 2023, ruling, the Superior Court of Pennsylvania dismissed a case by Petitioner S.U. (“Father”) for lack of jurisdiction, but not before describing some unique facts and parentage claims. Petitioner had asked the court to find error in the lower court’s dismissal of his claim, in which he argued that the mother to three of his children was only a “gestational carrier,” and that he was both the legal “Father” and “Mother” of the children. Wait. What? [Record scratch] You might be wondering how we ended up here.

Father Secretly Provided Ova

Prior to the Pennsylvania case, Petitioner brought a similar suit in West Virginia against CJ, the respondent and legal mother (“Mother”) of the children. In an unpublished opinion, the Court of Appeals of West Virginia described the unusual factual background.

The West Virginia court explained that the parties had attempted to have children the old-fashioned way, through sexual intercourse, but were unsuccessful. “Relevant to these attempts is the fact that Father was listed as a female on his birth certificate. Father testified that he was not a binary male or female at birth, although he has always considered himself to be male. Before the parties met, Father underwent surgeries to correct unspecified ‘anomalies’ and have his ova (eggs) harvested and stored.”

Prior to this information being revealed in court, Mother was entirely unaware of such procedures.

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The parties had one child together prior to the conception of the three at issue in the Pennsylvania case. Their first child, GU, was conceived through intrauterine insemination, which was performed by the Father, a registered nurse. The Mother was under the impression at that time that Father was using his own sperm. That turned out not to be the case, as Father was unable to provide sperm. Father has since refused to disclose the source of the sperm. Uh … not okay for Mother or GU.

The court described how the remaining three children were conceived through in vitro fertilization (IVF). Mother carried the pregnancies and was listed as the mother on all three birth certificates, while Father was listed as the father. It explained that “Mother believed Father’s sperm was used to conceive the Children, until she learned during the West Virginia custody litigation that this was not the case.” Oh wow. “During the West Virginia litigation, Mother became aware that the eggs used in the birth of the parties’ Children actually came from Father, who had his own eggs harvested and stored years prior.” So the Mother carried three children to term unknowingly using the Father’s eggs!

Father argued that Mother had no parental rights, “because the Children were conceived using his eggs, not hers, and because he was listed as the father on the Children’s birth certificate. Thus, Father appears to argue that he is the mother in fact, and the father by law.”

Fertility Fraud Is Alive And Well

Set aside for a moment the ruling of the court, which was that it lacked jurisdiction over the dispute. The bigger issue is that separate from the parentage and gestational carrier claims appearing ludicrous, the allegation of switched reproductive material, without the knowledge or consent of the mother, is incredibly disturbing.

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It has come to light since the advent of direct-to-consumer DNA tests that, in the past, an unnervingly large number of doctors had a practice of performing IUI fertility treatments on patients using sperm from a source other than that disclosed to the patient. One especially notorious case, and the subject of the Netflix Documentary “Our Father,” was that of Donald Cline. Cline was a doctor that frequently used his own sperm instead of that of the patient’s spouse or the promised “anonymous” donor to impregnate patients. Close to a hundred of his patients’ children have been discovered to be genetically related to him!

In the push for fertility fraud legislation over the past few years, opponents have argued that this issue is now moot. With readily available DNA testing, no medical professional is going to intentionally switch reproductive tissue in a procedure. But this case demonstrates that the issue is still a real one. People have a right not to be tricked or uninformed when it comes to the conception of their child. And the law should support a cause of action against such violations.

In good news, fertility fraud legislation has made incredible advancements in the last few years, including the introduction of a federal fertility fraud law.

In bad news, even with the dismissal of the Pennsylvania case, the nightmare is likely not over for Mother. Mother testified that she lives in constant fear that Father will find a court that will terminate her parental rights. After all, she is not genetically related to the children. And Father indicated that he had at least six appeals pending in West Virginia, in addition to filings in other states. Here’s hoping that he gives it a rest. For the sake of Mother, and especially for the sake of the children.

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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