Gestational mom can keep in vitro twins, NY court says.

A woman who gave birth to twin girls conceived with another woman's eggs by in vitro fertilization has as much right to custody of the girls as does the biological father, who is her ex-husband, a New York appellate court ruled recently. (McDonald v. McDonald, No. 91-08907, 1994 N.Y. App. Div. LEXIS 1463 (N.Y. App. Div. Feb. 22, 1994).)

The decision arose out of a temporary custody battle between the father, Robert McDonald, and his wife, Olga Benitez McDonald. The couple were not able to conceive naturally and in 1990 decided to try to conceive children by in vitro fertilization. Robert's sperm were mixed with a female donor's eggs, and the fertilized eggs were implanted in Olga's uterus. Nine months later, Olga gave birth to the twins.

Within months, Robert sued Olga for divorce and filed a motion for sole custody of the girls. He argued that he was the "only genetic and natural parent" and that therefore his custody claim was superior to Olga's.

The Queens County Supreme Court disagreed, and its ruling awarding temporary custody to Olga was upheld by the four-judge appellate court. It found that because Olga had been the twins' custodial parent from birth and Robert had not shown the court that she was an unfit parent, Olga could retain custody of the children.

In making its ruling, the court relied on the reasoning of the California Supreme Court in Johnson v. Calvert. (851 P.2d 776 (Cal. 1993).) That case arose out of a surrogacy contract between Crispina and Mark Calvert, who could not conceive naturally, and Anna Johnson. The agreement provided that Mark's sperm would be mixed with Crispina's eggs and that the fertilized eggs would be implanted in Johnson's uterus.

Johnson conceived, and when she gave birth, she sought to retain custody of the child. In a highly publicized decision, the California Supreme Court ruled that because the parties had intended from the outset that Crispina would rear the child, she and Mark should be awarded custody. The court added that its ruling would have been the same if the case had been "a true 'egg donation' situation, where a woman gestates and gives birth to a child formed from the egg of another woman with the intent to raise the child as her own."

The New York court found the California court's reasoning persuasive and noted that the McDonalds' case involved a true "egg donation" situation. Consequently, it ruled that Olga "is the natural mother of the children, and is, under the circumstances, entitled to temporary custody of the children with visitation to the husband."

Neither party has appealed the decision of the court.