October 28, 2013
by Amber Galaviz

“I’m also hoping that this type of attention that we’re experiencing is going to help clinics use the right words, express the right sentiment and make that journey that much easier.”

Though fertility treatments across the country have started to practice a “two-mom” approach which would allow female same-sex couples to share a role in the biological process, laws around same-sex marriage and parenting are making it difficult for states like Virginia to recognize both women as the parents.

Egg donation is nothing new, but clinics are now taking one woman’s eggs, mixing donor sperm and implanting them into the other woman to carry for the pregnancy. The process is meant to allow both partners a role in what is usually a shared experience for other couples.

Dr. Alan Copperman is the medical director of Reproductive Medicine Associates of New York (RMA), a clinic which offers the two mom approach and supports all types of families.

“We started RMA about 12 years ago as a patient-focused practice where we want to help women who come in have a healthy baby,” Dr. Copperman said. “I never really looked at it as being friendly to the lesbian community or transgender, it was just a matter of patients walking through the door and what are the tools we have to help her have a healthy baby and I think that over time just by not medicalizing the experience but trying to cure the absence of sperm with a timely arrival of sperm we have been able to help a lot of same-sex female couples have babies.”

The process which they have been calling co-IVF raises difficulties for same-sex couples but Copperman says his staff tries to be sensitive to all patients’ needs and the sex of a patients’ partner is irrelevant.

“I would hope that most clinics are offering the ‘two-moms’ approach,” said Copperman. “I’m also hoping that this type of attention that we’re experiencing is going to help clinics use the right words, express the right sentiment and make that journey that much easier.”

Copperman said the idea to change the method came a few years ago when a patient was unhappy with the process when she wanted to donate to her female partner and she was treated as a donor and not a co-parent.

“We have psychologists available to consult with patients who are choosing donor sperm in order to progress with fertilization, and we also work with reproductive lawyers who advise same-sex female couples of their rights in sharing the role of conceiving a child in this manner.”

Melissa Brisman is owner of Reproductive Possibilities, a surrogate mother agency, and is a lawyer for RMA couples making sure they receive all parental rights possible.

Brisman says there are two legal scenarios for couples in New York, one for a married couple and another for unmarried couples.

“So if they’re married and one of them gives birth to a child it doesn’t matter where the egg and sperm come from, under New York law they’ll both be the parent and under federal law they’ll both be the parent but if they go to Virginia, where Virginia does not recognize their marriage, they won’t both be considered the parent,” Brisman said.

“So if one woman is carrying the eggs of another woman we’re still going to recommend that they do a court process for an adoption after birth to declare both women the parents,” Brisman explained since other states don’t have the same rights.

In New York there are two options for unmarried female couples, either getting a court declaration saying they are both the mothers or having the woman who contributed her egg but who did not carry the pregnancy do an adoption.

“In New York they have same-sex marriage and they have same-sex adoption, we don’t have any of that here,” said Colleen Quinn, director and equity owner in the law firm of Locke & Quinn in Richmond. “We have to settle for second best.”

As founder of The Quinn Law Centers, Quinn specializes in adoption and surrogacy law and has represented hundreds in this field since 1989.

“Basically in Virginia, right now, we cannot get both genetic mom and stational mom on the birth certificate,” Quinn said. “Genetic mom is the one that contributes her egg, she does not donate, she contributes to the gestational mom. The stational mom carries the egg and it’s always a donor sperm, either known or unknown.”

One of the most important steps these couples have to take, Quinn says, is making sure the partner contributing her eggs to the other is referred to as a contributor and not a donor because donors typically sign over all legal parental rights.

“So what I do now is a non-donor parenting agreement between the two moms,” said Quinn. “We do not know the enforceability of that agreement in Virginia right now.”

The non-donor agreement is an important element since there was a Supreme Court of Virginia decision earlier this year which established that parental rights to unmarried sperm donors shouldn’t always be denied. “Having a non-donor document is critical because otherwise if they broke up, carrying mom could say, ‘oh, you were just a donor’,” Quinn said.

Virginia has not established a method for getting both mothers’ names in the birth certificate and instead only the carrying mother’s name is the only one who goes on the birth certificate. Currently these couples only have two options, they either have to do a second parent adoption in another state or they have to settle for a joint custody order.

Quinn said there are four very main aspects to this matter, “One, we cannot get both names on the birth certificate like they can in New York. Two, the only one we can get on the birth certificate is the carrying mom. Three, biological mom can get a joint custody order after the birth with the carrying mom. And four, the two moms have to make sure they have a non-donor agreement between them.”