On December 11, 2023, the Superior Court of Pennsylvania issued a significant ruling for parents in the Keystone State. The win, in a case called Junior v. Glover, was especially important for parents who use donated eggs, sperm, or embryos, and who thus might be a parent without a direct genetic connection to their child. In ruling in favor of the nonbiological parent, the Superior Court reversed a prior three-judge panel of the Superior Court, which had issued an opinion on February 24, 2023. That opinion initially reversed the trial court, and ruled in favor of a biological parent, Glover, who challenged the parental rights of her ex-wife. The panel opinion had determined that one of the parents — Nicole Junior — was not a parent of the child conceived through assisted reproduction during Junior and Glover’s marriage.
The prior three-judge decision had been notable to practitioners and scholars in this area, given that it had the potential to significantly affect many same-sex female couples. And it was especially jarring because all the facts pointed to the parties’ joint intent that Junior be a legal parent to the child.
Nicole Junior and Chanel Glover discussed future children even before they married. After marrying in January 2021, they looked at sperm donor options together, even selecting a donor with features similar to Junior’s. They purchased the sperm together, sought fertility treatment as a couple (which successfully resulted in Glover’s pregnancy and the child at issue), chose a name for the child together, planned a baby shower together, and hired a birth doula together.
And they went the extra mile. As both were lawyers, they jointly hired a law firm during the pregnancy to protect their family and, specifically, Junior’s parental rights. Junior and Glover each signed affidavits with the law firm affirming their intentions that Junior be a legal parent of the child, and their plan to complete a confirmatory adoption after the birth of the child.
But, of course, to be here, something had to go wrong. The couple separated prior to the birth of the child, and Glover filed for divorce. Junior promptly filed for prebirth legal recognition as a parent of the child that Glover would soon be delivering. The trial court granted the requested parental recognition for Junior. But then Glover appealed.
The initial three-judge appellate ruling found that that “Commonwealth permits assumption … of legal parental status, under the narrow circumstances of using assisted reproductive technology, and forming a binding agreement with respect thereto.” But, then it found that despite the many agreements the parties entered into together — including with the sperm bank, several with the fertility clinic, and affidavits on the issue — the parties did not have an enforceable agreement. The result was that Junior was denied parental recognition. The dissent, written by Judge J. Bowes, disagreed, and prepared the road map for the en banc majority.
The opinion — an enforceable oral contract. After her prior dissent, Judge Bowes had the chance to author the majority opinion of the en banc court. This time, while the court still found that the parties lacked an enforceable written agreement, the written agreements that the parties entered into supported the finding of an enforceable oral agreement, establishing a right for Junior to be recognized as a parent of the child.
Who knew there were so many ways to establish parentage? In addition to parentage by contract, the court also looked at the marital presumption or parentage, parentage by intent, and parentage by estoppel.
When Does Marital Assumption Apply?
For most married couples, regardless of whether the nonbirthing parent is genetically related to the child, the marital presumption of parentage applies to recognize the nonbirthing parent as a legal parent and to have that parent placed on the child’s birth certificate. The Pennsylvania Supreme Court described the marital presumption as “one of the strongest presumptions in Pennsylvania law … that a child conceived or born in a marriage is a child of the marriage.” Because Junior and Glover were married at the time of conception, shouldn’t the marital presumption apply to Junior?
An amicus brief on behalf of by the Pennsylvania Chapter of the American Academy of Matrimonial Lawyers (AAML), as well as the Academy of Adoption and Assisted Reproduction Attorney, Philadelphia Legal Assistance, and Philadelphia Family Pride, supported a finding of Junior as a parent on multiple grounds. “Had [Junior] and Ms. Glover been an opposite-sex couple who had conceived naturally, the law would absolutely recognize [Junior’s] parental rights, notwithstanding the couple’s separation. Accordingly, the decision of the prior panel of this Court to deny parental status to [Junior] breaks with decades of precedent, and in so doing, upsets settled law on which parents conceiving through ART have come to rely.”
However, under Pennsylvania law, the marital presumption no longer applies when the marriage is no longer “intact” or is irretrievably broken. The brief argued for recognition given the clearly intact marriage at conception and the divorce still pending at birth.
While the en banc court followed the amicus brief’s recommendation of finding parentage by contract (an oral one), it declined to also find that the marital presumption applied to Junior’s benefit. Here, the couple was married for only seven months at the time of conception and was in the process of divorce at the time of the birth. Still, the court recognized that the onset of the divorce proceedings is not determinative of the issues. “Nevertheless, the filing of the divorce complaint is particularly relevant considering the trial court’s factual findings concerning the parties’ marital strife … and overall, the facts of this case at bar align with the cases finding that the various marriages were no longer intact.”
What About Intent-Based Parentage? Can An Appellate Court Establish A New Legal Theory?
The en banc opinion not only recognized Junior as a parent based on an oral contract between the parties, but went a step further and — to the chagrin of a concurring judge — also held that Junior was a parent based on the application of the doctrine of “intent based parentage.”
The test was discussed in a dissent of the Pennsylvania Supreme Court in the case of CJ v JH. There, the court didn’t directly adopt intent based parentage, because no intent was found to exist in the case. However, here, the en banc court took the opportunity to endorse the appropriateness of establishing parentage by intent in the case of assisted reproduction.
But a concurrence by Judge J. King argued that it was not the role of the appellate court to introduce new law. The role of the Superior Court is as “an error correcting court and we are obliged to apply the decisional law as determined by the Supreme Court of Pennsylvania … It is not the prerogative of an intermediate appellate court to enunciate new precepts of law or expand existing legal doctrines.”
One More! Parentage By Estoppel.
The court also touched on one more parentage theory: parentage by estoppel. Although the discussion is mostly relegated to the footnotes in the opinion, the majority explains that “assuming arguendo, that Junior did not have a contractual right to parentage, relief it also warranted under the court’s equitable power. Phrased differently, Glover’s actions and representations regarding the child’s anticipated parentage were grounds under the doctrine of equitable estoppel to preclude her from challenging Junior’s parentage.”
I spoke with Helen Casale, one of the authors of the AAML amicus brief. She was pleased with the outcome, but noted that an appeal to Pennsylvania’s highest court had already been filed by Glover. While it is possible that the state’s Supreme Court could take a different approach, in fact, the appeal may present the perfect opportunity for Pennsylvania’s highest court to firmly recognize the application of parentage by intent in the case of conception by assisted reproduction. That ruling would then cement those protections for same-sex couples, along with other parents who grow their families using common fertility treatments. In the meantime, Casale says she continues to caution same-sex couples and parents through assisted reproduction of the importance of speaking to an attorney and taking every precaution.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].