In a much anticipated decision, the Pennsylvania Supreme Court has now defined parentage to include intent-based parentage in the landmark case Glover v Junior. Historically Pennsylvania recognizes parentage of a biological parent, adoption, presumption of parentage or estoppel and a contract in cases where a child is born through Assistive Reproductive Technology. But what about a case where a same-sex couple conceives a child using a sperm donor and Assistive Reproduction Technology, but the couple did not enter into a contract and they separated before the child was born? The en banc Court held the doctrine of intent-based parentage will be recognized in Pennsylvania.
In the present case, prior to the parties being married they discussed starting a family and once married they reached out to a fertility clinic to discuss their options including in vitro fertilization. One month after being married they entered into a contract with a fertility clinic for donated sperm. The contract only had one line for the signature of the Intended Parent, which Glover signed. The parties selected a donor who had the same characteristics of Junior. Thereafter, the parties relocated to Philadelphia where they continued to work with the clinic at their Pennsylvania location, and the IVF Agreement was signed by Glover as “Patient” and Junior as “Partner.” In August 2021, the parties conceived via IVF, whereby Glover’s egg was used. Junior accompanied Glover to appointments and both parties signed an agreement in anticipation of Junior’s step-parent adoption of the child. Both parties also signed affidavits expressing their intent for Junior to adopt the child. The terms of the contract included a statement that Junior would have the same equal rights as a biological parent.
Unfortunately, before the child was born the parties separated and Glover informed Junior she no longer intended to proceed with Junior’s second-parent adoption after the child was born. Glover then filed a divorce complaint. After several proceedings in custody court and before the appellate court, the Pennsylvania Supreme Court was asked to determine whether individuals can enter into an enforceable agreement to determine parentage and parental rights. After considering prior Pennsylvania cases defining and recognizing parentage, the majority of the Court held Junior established parentage by intent-based parentage. It should be noted the Pennsylvania Supreme Court held contract based parentage and parentage by estoppel were not proved in the present case.
The Court noted the record was replete with evidence supporting intent-based parentage. In the present case, Junior did not share any genetics with the child and the parent’s relationship ended before the child was born. Thus neither a biological relationship or opportunity to adopt was present in this case. Further, since the marriage was not intact when the child was born, Junior could not establish parentage through the marital presumption. Additionally, facts showed Junior was prevented from having a relationship with the child so parentage by estoppel was also not available in this case. Finally, contract principles were not present in this case because the parties were a married couple when they decided to have a child and the Court did not recognize a transaction involving an offer, acceptance and consideration.
The Court noted the record was replete with evidence to support a holding the parties mutually intended to bring a child in the world and raise the child together and further that Junior participated in that process by entering into multiple contracts pertaining to conception and birth of the child, playing an active role in selecting the sperm donor, selection of a donor with similar characteristics as Junior, equally sharing the costs of conceiving the child and assisted Glover with the IVF process. They also both planned a baby shower together and selected a name for the child. More importantly, the parties signed affidavits stating their intentions to both equally parent the child including exercising equal rights as a legal parent for the child. The Court confirmed the prior paths to parentage remain in Pennsylvania, and although a contract or a writing is not required to be a parent a writing which expresses each parent’s written affirmations provides strong evidence of intent even if the actual writings do not meet the elements of a contract.
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