How Lesbian Couples Can Build a Family Through Reciprocal IVF

There are multiple options available for lesbian couples who want to start a family. One partner may undergo artificial insemination or intrauterine insemination with donor sperm. The couple may choose to adopt. But the process of reciprocal in vitro fertilization (IVF) allows both partners to participate in the conception and birth of their child in a way that those other options do not.

What is Reciprocal IVF?

Any IVF procedure involves inducing ovulation, retrieving eggs (ova), fertilizing the eggs, and transferring the embryos to the uterus of the person who hopes to carry the pregnancy. In the process of reciprocal IVF, the eggs are retrieved from one partner, and transferred to the uterus of the other, allowing both to make a physical contribution to the pregnancy. The partner who provides the eggs for fertilization will be genetically related to the resulting child; the other partner has the experience of carrying and giving birth to the child. Reciprocal IVF is also sometimes referred to as a “co-maternity arrangement.”

There are a number of ways in which the process of reciprocal IVF can unfold. Both partners in the couple may undergo their parts of the procedure in the same cycle: eggs from one woman can be retrieved, fertilized, and transferred to the other. Another option is to stimulate ovulation and retrieve eggs to be frozen and fertilized at a later date. Couples may also choose to have eggs fertilized and then freeze the resulting embryos for transfer at another time.

Some lesbian couples have even chosen to undergo reciprocal IVF simultaneously; in that situation, each partner undergoes egg retrieval, and each carries a pregnancy resulting from fertilization of the other partner’s egg(s). More commonly, one partner will contribute the eggs for the first pregnancy while the other carries the pregnancy; they switch roles for the next pregnancy. The couple may choose to use the same sperm donor for both pregnancies so that their children will be genetically related to each other as well as to one of the mothers.

Advantages and Disadvantages of Reciprocal IVF

The primary advantage of reciprocal IVF for lesbian couples is that it allows both partners to play an important role in the conception and birth of the child, which can help both partners feel closer to each other and their baby.

One of the main downsides to reciprocal IVF, as with any assisted reproduction technology (ART) is the financial costs. Insurance often does not cover IVF procedures, so the couple pursuing parenthood must frequently pay thousands of dollars out of pocket.

A “fresh” cycle of IVF is one in which eggs must be retrieved and fertilized (as opposed to a cycle in which previously retrieved and/or fertilized eggs are transferred. It is not uncommon for a fresh IVF cycle to cost upwards of $12,000, not including the cost of the necessary fertility medication for each partner, which may add from $3,000 to $10.000 per partner to the cost of each cycle. In short, reciprocal IVF carries a high financial price tag, with no guarantee of success in a given cycle.

There are also legal risks to reciprocal IVF. A couple pursuing pregnancy through this process is typically envisioning a long and happy future together with their child. But with any couple, the future can often turn out much differently than they once imagined. That can lead to some thorny legal disputes over a child born through reciprocal IVF. An experienced family law attorney who deals with assisted reproduction technology can help prevent unnecessary litigation.

Who is the Legal Parent of a Child Born Through Reciprocal IVF?

While the parents are together, they may act as parents raising their child as a family unit. However, legally, their parental rights are less certain, and this may be illuminated in a divorce action. The question is, “How does the law treat lesbian parents who conceived and carried a child through reciprocal IVF?”

A recent Michigan case highlights what can happen when parental rights are not clearly established. Matthews v. LeFever involved a lesbian couple who used reciprocal IVF to conceive twins. Kyresha LeFever’s eggs were fertilized and transferred to LaNesha Matthews’ uterus. Matthews carried and gave birth to the couple’s twins.

LeFever and Matthews ceased to be a couple when their children were young, but successfully co-parented until the twins were five. At that point, Kyresha LeFever pursued shared custody. The Michigan court granted LeFever’s request based on her genetic relationship to the twins. Despite the fact that LaNesha Matthews carried the twins, gave birth to them, and parented them for almost seven years, the Michigan trial court ruled that she was a surrogate and had no parental rights to the children. She was granted limited parenting time with the children as a “third party.”

Fortunately, the Michigan Court of Appeals reversed the trial court’s ruling in April, 2021. The appellate court unanimously held that both women are equal parents to their children. The court stated that a woman who gives birth to a child intending to be that child’s parent is a parent, lack of genetic relationship notwithstanding.

The Michigan Court of Appeals ruling gives effect to what LeFever and Matthews intended when they conceived their twins: that both women would be their parents. But the family had to go through years of legal struggle to reach this result, a process that was no doubt costly in terms of both legal fees and personal relationships. Had the couple had a legal agreement in place at the time they began the assisted reproduction process, they might have avoided years of conflict.

While the ruling from Michigan is persuasive, it is not binding upon a South Carolina Family Court. To date, the issue of parentage has not been decided by the South Carolina Appellate or Supreme Court. Therefore, like in Michigan, if challenged, it will likely take years and thousands of dollars in litigation costs to determine the outcome. The issue of legal parentage can easily be addressed by the parties prior to conception and affirmed immediately post-delivery by a South Carolina Family Court. This is an important issue for married and unmarried same sex couples.

Reciprocal IVF can be a wonderful way to start or build a family, but the legalities of parental rights in South Carolina is uncertain. Therefore, working with an experienced ART attorney can help you take preventative steps to secure equal rights to a child. If you have questions about reciprocal IVF or other assisted reproduction technology, please contact Brinkley Law to schedule a consultation.