Legal Considerations for Reciprocal IVF in South Carolina

Reciprocal IVF, also known as co-maternity or co-IVF, is an attractive option for lesbian couples who both wish to biologically participate in growing their family. Unfortunately, the law surrounding reciprocal IVF has not fully caught up, and couples considering it should fully understand and address important legal considerations before moving forward with the process.

Key Takeaways

• Reciprocal IVF, also known as co-maternity or co-IVF, allows both partners in a lesbian relationship to biologically participate in growing their family.
• One partner may choose to have her eggs retrieved, fertilized, and implanted in the other, or both may undergo the process at the same time and save the eggs to be fertilized later.
• South Carolina law does not automatically extend parental rights to both partners in a same-sex relationship. The non-birth parent should consider additional legal protection to establish parental rights.

What is Reciprocal IVF?

Reciprocal in vitro fertilization (IVF), or reciprocal IVF, allows both partners in a lesbian couple to biologically participate in a pregnancy. One partner supplies their eggs, which are retrieved and fertilized using donated sperm, and the other partner carries the resulting embryo as a gestational carrier. The process allows both partners to biologically participate in the pregnancy. However, reciprocal IVF presents considerable legal issues that a couple should address before moving forward.

Options in Reciprocal IVF: Decide Who Is Doing What

There are a number of options for reciprocal IVF. One person may have their eggs retrieved, fertilized, and transferred to their partner. Alternatively, both partners may choose to have their eggs retrieved at the same time, fertilized, and transferred to the other. Or, one partner could have their eggs frozen to be fertilized later.

In many situations, one partner contributes eggs for the first pregnancy while the other partner carries the pregnancy, then they switch roles for the second pregnancy. Some couples choose to use the same sperm donor so the children are genetically related to each other as well as one of the mothers.

Benefits and Risks of Reciprocal IVF

The biggest benefit of reciprocal IVF is that both partners participate and contribute biologically to growing their family. However, one of the largest downsides to reciprocal IVF, as with any assisted reproductive technology, is the cost. Insurance typically does not cover IVF procedures, meaning the couple considering parenthood often must pay thousands of dollars out of pocket.

Legal Considerations When Pursuing Reciprocal IVF

Couples considering reciprocal IVF envision a long and happy future together, raising their family. But, as with any couple, the future can turn out differently than expected. It’s important to keep the following legal considerations in mind when pursuing reciprocal IVF:

South Carolina Law Does Not Automatically Protect Both Parents

When the parents are together, they may raise their children as a family. However, the legal parental rights are less clear. While Obergefell v. Hodges recognizes the marital rights of same-sex couples, it does not convey parental rights. Even though a child was born during the marriage, the non-birth parent does not automatically have legal parental rights without a court order establishing parentage.

In Carson v. Heigel, a federal District Court case from South Carolina, the court ruled that, even though both parents may be listed on the child’s birth certificate, a birth certificate is a form of identification that does not establish the parental rights of the parents listed on it.

South Carolina’s Intent Doctrine

South Carolina is an “intent-based” parentage state, meaning that, regardless of whether there is a genetic connection, there must be evidence of intent to jointly create life and hold that child out to the community as a child of the marriage. The best evidence of intent is a legal contract between the intended parents, often referred to as a preconception agreement, as well as a post-birth order to terminate the rights of the sperm donor and convey legal parental rights to the non-genetic parent.

The egg provider in a lesbian relationship should be aware that many standard egg donor agreements include clauses that forfeit the donor’s parental rights and could jeopardize custody rights in the event of a divorce.

Establishing Legal Parentage

A birth certificate alone is likely insufficient to establish parental rights. A couple should consider additional legal avenues for establishing parentage, such as a post-birth order. While historically under South Carolina law the person who gave birth to the baby is presumed to be the mother, when it comes to reciprocal IVF the egg provider has the legal claim of parentage and the non-genetic parent needs to take additional steps to secure parental rights, regardless of whether they carried the child or not. For this reason, it is best to consider a confirmatory adoption as additional legal protection that would be recognized in other states.