Has Science Outstripped the Law of Biological Parenthood?

Two unusual cases affecting the legal status of same sex partners as biological parents have been reported in the news.

In one, two women in a same sex marriage wished to share in the experience of carrying their child. One of the women donated eggs. Donor sperm was used to fertilize the women’s eggs outside of her body. The resulting embryos were then placed into a special device and incubated in her body. When the embryos were ready, they were transplanted into the womb of the woman who had not provided the eggs. In summary, the genetic mother of the child donated her eggs and incubated the embryos. The non-genetic mother carried the baby to term.

Will the law recognize both women as the child’s biological parent? The facts challenge our notions of what it is to be a biological parent. Biological parents share genetic material with their offspring. They often share physical characteristics such as hair, eye, and skin color, height, and build.

On the other hand, surrogacy has been around since embryos could be created outside of a womb and transferred to a woman willing to bear them. Those surrogates often consider the resulting children to be their own. They often form emotional bonds with the child during pregnancy.

In Louisiana, the notion that a woman who gives birth to a child is that child’s parent is strong. The strength of this notion is reflected in the black letter law. In Louisiana, a woman’s agreement to give up a child born of surrogacy upon its birth is an absolute nullity unless the surrogate, her husband (if any) and the party or parties donating eggs and/or sperm strictly follow the applicable statute.

In another case, two women both provided genetic material for the embryo that was ultimately carried to term. One of the women had a genetic disease that could have threatened the health and life of any child she bore. The disease causing DNA was removed from her egg and replaced with DNA from a healthy egg from a female donor. Fertilization of that egg produced an embryo that did not bear the disease causing genetic defect. That embryo was then implanted in the womb of the woman with the genetically transmitted disease to produce a healthy child. This child had the genetic material of both women and, of course, its father. In other words, the child had three biological parents.

Does DNA make the parent? Does the child’s residence in the mother’s body matter? No reported Louisiana case addresses these precise issues. If you are in a same sex relationship and considering the use of in vitro fertilization with or without a surrogate, you should consult with an attorney beforehand. Mr. Cosenza can advise you concerning the issues you may have to deal with and any statutes that may affect your decisions.