Egging on Lesbian Maternity: The Legal Implications of Tri-Gametic in Vitro Fertilization

Abstract

Several assisted reproductive technologies exist for lesbians and lesbian couples to create life. While many of these techniques, such as artificial insemination or surrogacy, are effective for embryo creation, they often lead to legally unpredictable and unstable parental rights for mothers. New and not yet widely used forms of assisted reproductive technologies allow two women to create an embryo that utilizes the genetic material of each, rather than relying on genetic material of a sperm donor. These procedures, not available in any major fertility clinic and not yet officially named, are referred to in this article as Tri-Gametic In Vitro Fertilization (TGIVF).This article submits that the use of TGIVF will allow lesbian couples to create families in a way that is more legally secure and predictable. Three situations illustrate how current statutory law and case law fall short with traditional methods of assisted reproductive technologies, and how TGIVF can strengthen parental rights for lesbian couples. First, under state statutes and case law, when a sperm donor in an insemination case tries to assert parental rights after donation, he has traditionally been able to rely on his genetic connection to claim such rights. With TGIVF, the court should see his role differently, in that he only donates the sperm casing and no genetic information. Second, a TGIVF donor may attempt to liken his role in donation of sperm casing to that of a gestational surrogate, arguing that each plays a crucial role in reproduction. Even if a TGIVF donor can overcome the hurdles that a surrogate must overcome to gain parental rights, a court will likely not view the processes of donating sperm and giving birth to a baby as comparable. Finally, when a lesbian couple with a child dissolves their relationship, the non-biological mother has limited legal protections. TGIVF guarantees both mothers the right to visitation and/or custody upon the dissolution of the relationship because both are the biological and genetic parents to the child.The article recommends that the law recognize TGIVF created families of two legal parents -- the two mothers -- and the children. Three-parent TGIVF created families should also be recognized and legally protected if the two genetic mothers intend to create such a family and the sperm donor agrees and intends such a family. The article concludes by insisting that TGIVF not be viewed as the only method by which lesbians and lesbian couples can form legally recognized families. TGIVF should not limit the options by which lesbians couples can form families, but instead is a stepping-stone into the future of legally recognized, non-traditional families.