A March 19 decision, written by North Carolina Court of Appeals Judge Donna Stroud and joined by Judge Julie Flood, overturned a lower court’s decision that a non-biological parent of a child created by in vitro fertilization (IVF) needed to pay child support. The decision comes as revolutionary new fertility treatments and changing norms on family structure add additional layers of complexity to the already complex field of family law.

The case involves whether one member of a dissolved lesbian couple, Tricosa Green, owes the other member, E’Tonya Carter, money to support Alisa, a court-assigned pseudonym for the child that they cooperatively brought into the world through IVF.

“The parties are two women, never married to one another, who were in an ‘on again off-again’ romantic relationship,” the decision stated. “During the parties’ relationship, they planned to have a child together. The parties participated in an in vitro fertilization (‘IVF’) program in the State of New York. Both parties signed the IVF Agreement in November 2015, jointly selected a sperm donor, and [Green] paid for the IVF process.”

The case hinged on Green’s legal status in relation to the child, since authorizing and paying for IVF aren’t what traditionally make one a parent. State law, according to Stroud, is clear that only parents have “primary liability,” and parents are defined as either a biological parent or someone who has officially adopted a child. The only other person that might have to pay child support is someone acting “in loco parentis,” who has agree, in writing, to take on some responsibilities of a parent for a time.

But this is where current North Carolina law may be insufficient to protect children created through IVF and similar treatments. If two people — married or not — decide to have a child the old-fashioned way, they both have legal obligations as biological parents of the child. But for Green and others who choose to have a child through newer methods, that isn’t automatically the case.

According to court documents, the lower court found that Green:

  • allowed her employer-sponsored health insurance to pay for [Mother’s] IVF process with the express intention of birthing and raising a child together,
  • signed IVF paperwork which equally bound her to the risks and rewards of the IVF process,
  • held herself out to family, friends, and social media and this Court as [Alisa’s] mother,
  • took maternity photos with [Mother],
  • attended [Alisa’s] baby shower as an honored parent (in matching T Shirts with [Mother]),
  • moved to Charlotte to be closer to [Alisa] after [Alisa’s] birth and the end of [Partner’s] relationship with [Mother],
  • kept [Alisa] for a two-week period while [Mother] traveled for work,
  • continuously helped to pay for [Alisa’s] day care expenses,
  • continuously provided health insurance for [Alisa]. To do so, [Partner] signed documents claiming the minor child as her dependent and sought reimbursement for certain medical expenses;
  • continuously provided financial support to [Mother] for the benefit of [Alisa], including cash, diapers, clothes and the like;
  • filed a lawsuit and signed a complaint for child custody to be granted court ordered custody of [Alisa]. In this complaint, [Partner] refers to herself as a mother and a parent to [Alisa],
  • has maintained a consistent 50/50 parenting schedule with [Alisa],
  • has been regularly involved in [Alisa’s] medical and educational development by attending doctors’ appointments and being involved with her teachers,
  • [r]eferred to [Alisa] consistently as her child and to herself continuously as [Alisa’s] mother.

Stroud seemed to agree that Green shared a lot of obligation for the care of the child she helped bring into the world, but in the end, as a conservative justice, she wasn’t willing to rewrite the law.

“We fully appreciate the difficult issues created by IVF and other forms of assisted reproductive technology, but only the General Assembly has the authority to amend our statutes to address these issues,” Stroud said on page 37 of the decision. “Protection of the children born into these situations, whether to a same-sex couple or a heterosexual couple, is a complex policy issue, but this Court does not have the role of creating new law or adopting new policies for our state.”

Stroud ruled, in conclusion, that Green did not have to pay child support, saying, “Based on long-established North Carolina law, the short answer is no: Plaintiff cannot be required to pay child support unless she is the child’s mother or father or she agreed formally, in writing, to pay child support.”

As Stroud suggested, there are “difficult issues” with IVF becoming more common. This case shows that one of those is that people, like Green, may decide they want a child and may pay to have one medically created within their partner, only to change their mind later and not want that responsibility. Those who agree to create human life with a partner in the traditional manner are not allowed to walk away, but for the moment, this is not the case for all those deciding to create a child through IVF with a partner.

Admittedly, I’m not all that comfortable with IVF in general. There’s the up to 1 million human embryos frozen in limbo in the United States, the “selective reduction” (abortion) of usually all but one fetus in the very frequent scenario where more than one embryo implants, and all the scientific experimentation on the unwanted embryos. It all seems a bit too much like playing God — creating unique human lives, freezing them in their earliest stage of development, and then figuring out the most productive way to use them.

But if we are going to have this new method of creating life, at minimum, it seems that anyone initiating the process to be a parent this way should also be required to officially adopt that child so they’re guaranteed support.

Editor’s note: An earlier version of this article identified Judge Stroud as being on the Superior Court rather than the Court of Appeals.