Intersex man argues he is mother and father of children to gain custody

The Superior Court of Pennsylvania dismissed the appeal of a father who sought to remove custody of his three children from his female ex-partner on the basis that they were conceived using his own eggs.

Custody litigation he initially brought in West Virginia revealed he was born intersex [according to court documents: '...the record suggests Father was born with male and female reproductive organs'] and  assigned as female at birth, but said he had always identified as male and had harvested and stored eggs before undergoing corrective surgery. Up until the West Virginia litigation, the mother of his four children believed the first had been conceived using IUI with his sperm in 2011, and the latter three with IVF using her eggs and his sperm. In fact, they were created using an unidentified donor's sperm, and for the latter three the father's eggs. The couple, who were together for 12 years, had sought fertility treatment after attempts to conceive naturally had not been successful. The father is a registered nurse.

Because his eggs were used to conceive the children, the father argued that his ex-wife was merely a 'gestational surrogate' 'who lacks the parental rights guaranteed under the Fourteenth Amendment of the US Constitution', the Pennsylvania Court wrote in its judgement. The father has since brought 'a multitude of actions and petitions' against the custody order, in several states. The mother has testified that she 'lives in constant fear that the father will find a court that terminates her parental rights'.

He has argued that in addition to being recognised as the father on the children's birth certificates by virtue of being the partner of their mother when they were born, he ought to be recognised as their mother, in law too. He states that his ex-wife is nothing more than a 'court-created psychological parent'. He wishes his current wife, who has herself filed several appeals in the matter, to adopt the children.

The original West Virginia custody litigation concluded with the court designating the mother as the primary residential and custodial parent to the children. The court found credible her testimony that she was in fact in a relationship with the father for twelve years, rebutting his allegation that she has 'kidnapped' the children from him.

In a ruling on 6 January 2023, the Superior Court affirmed a decision of the Westmoreland County Orphan's Court that the courts in Pennsylvania lack jurisdiction to hear a petition against a custody order made in West Virginia.

Court materials do not outline how the gametes were swapped or how the mother of the children was led to believe that her own eggs and partner's sperm were used to create the embryos.

The Protecting Families from Fertility Fraud Act of 2022 was introduced to US Congress in July 2022 to criminalise misrepresentation of the source of DNA a federal crime, and though it was not voted on, fertility fraud laws have been passed in a number of states.