“Intent-based” Parentage of Child Conceived via In Vitro Fertilization
Glover v. Junior, 306 A.3d 899 (Pa. Super. 2023), allocatur granted Mar. 5, 2024, appeal docket 9 EAP 2024
Glover and Junior, a married, same-sex couple, conceived a child via In Vitro Fertilization (“IVF”), carried by Glover, using Glover’s eggs and sperm from a donor. Throughout the process, Glover and Junior executed numerous agreements with fertility clinics, sperm banks, and attorneys, and executed affidavits affirming their intent to have Junior adopt the child upon birth. Prior to the birth of the child, Glover and Junior began divorce proceedings and Glover filed a petition for pre-birth establishment of parentage of the child. The trial court found that Junior had a contractual and intent-based right to parentage and issued an order requiring Junior be recognized as the child’s second parent.
Glover appealed to Superior Court, arguing, inter alia, that the trial court’s finding of “intent-based parentage” conflicts with C.G. v. J.H., 193 A.3d 891 (Pa. 2018), which limits recognition of legal parentage to biology, adoption, judicial presumptions associated with intact marriages, and “contract—where a child is born with the assistance of a donor who relinquishes parental rights and/or a non-biologically related person assumes legal parentage[.]” Id. at 904.
Superior Court affirmed the trial court and held that Junior had a contract-based and intent-based right to parentage. Addressing the Supreme Court’s decision in C.G., Superior Court explained:
…in C.G., our Supreme Court confronted whether an unmarried, former same-sex partner had standing as a “parent” pursuant to § 5324(1) of the Child Custody Act, to seek custody of a child who was conceived via intrauterine insemination using an anonymous sperm donor. C.G., who shared no genetic connection with the child and never pursued adoption, argued that she had standing because she acted as a mother to the then nine-year-old child, whom she argued was conceived with the mutual intent of both parties to co-parent. C.G. also asserted that her continued involvement served the child’s best interests.
J.H., the biological mother, filed preliminary objections to the custody complaint wherein she argued that C.G. lacked standing because she was not the child’s parent or grandparent and did not stand in loco parentis to the child. Moreover, J.H. disputed that she conceived the child with the intent to co-parent with C.G. and highlighted that she satisfied nearly all of the child’s financial needs, served as the sole parent since birth, and “made all decisions regarding the child’s education, medical care, growth and development[.]” C.G., supra, at 894 (quoting Prelim. Objections, 1/6/16, at ¶¶ 7-11.).
Following a three-day evidentiary hearing addressing “C.G.’s participation in the conception, birth, and raising of [the c]hild, [and] the intent of the parties with respect thereto,” the trial court sustained the preliminary objections. Id. at 894-95. Specifically, *913 as to the parties’ intent to co-parent, the trial court found no shared intent to conceive and raise the child collectively. Hence, the court was persuaded that C.G. was not a parent and J.H. did not hold her out as one to others. Id. at 896.
C.G. appealed the order dismissing the custody complaint, and we affirmed. The Supreme Court granted allowance of appeal to consider, inter alia, whether the former same-sex partner had standing “to seek custody of a child born during her relationship with the birth mother where the child was conceived via assisted reproduction and the parties lived together as a family unit for the first five years of the child’s life.” Id. at 897-98.
In affirming the court’s rejection of C.G.’s standing claim, the High Court held that Pennsylvania jurisprudence limits recognition of legal parentage to biology, adoption, judicial presumptions associated with intact marriages, and “contract—where a child is born with the assistance of a donor who relinquishes parental rights and/or a non-biologically related person assumes legal parentage[.]” Id. at 904. As C.G. had no biological connection to the child, had not officially adopted the child, and did not have rights that have been recognized as affording legal parentage, the High Court concluded that she was not a parent.
Significantly, however, the Court continued:
[N]othing in today’s decision is intended to absolutely foreclose the possibility of attaining recognition as a legal parent through other means. However, under the facts before this Court, this case does not present an opportunity for such recognition, as the trial court found as fact that the parties did not mutually intend to conceive and raise a child, and the parties did not jointly participate in the process.
Id. at 904 n.11 (emphasis added).
Slip op. at 20-22. Superior Court noted that the concurring Justices in C.G. recognized the potential for parentage to be established by intent in a case with different facts from C.G., summarizing that:
The respective concurring opinions of Justices Dougherty and Wecht outlined their perspectives of intent-based parentage, but nonetheless agreed that the factual record did not warrant its application in that case. In this vein, Justice Dougherty reasoned that it was not necessary “to endorse any particular new test” because the Court was bound by the factual findings that there was no mutual intent to conceive and raise a child, or evidence of shared participation in the reproductive process. He further noted that those findings “preclude a holding that C.G. has standing as a parent under any of the proffered definitions of intent-based parentage.” Id. at 913.
Justice Wecht, joined by Justice Donohue, observed that “[r]eliance solely upon biology, adoption and contracts is insufficient” in some situations and articulated his comprehensive perspective that, “in cases involving [ART], courts must probe the intent of the parties.” Id. at 913-14 (footnote omitted). However, he too was constrained to concur with the majority’s decision based upon the trial court’s findings of fact. Justice Wecht explained,
While I would embrace an intent-based test for parentage for persons pursuing parentage through ART, I nonetheless concur with the Majority’s determination that C.G. was not a parent under the facts of this case as found by the trial court. As the Majority notes, the trial court found that J.H. was credible when she testified that C.G. never intended to be a parent to Child and that C.G. did not act as a parent. Further, the trial court credited testimony that C.G. and J.H. reached no mutual decision to become parents. Given that there was no documentary evidence of C.G.’s intent to parent, and given that the trial court found, consistent with the record, that C.G.’s actions were not those of a parent, I join the Majority’s conclusion that C.G. did not have standing as a parent pursuant to 23 Pa.C.S. § 5324.
Id. at 917 (emphases added, footnotes omitted). Overall, Justice Wecht concluded, “I think that today’s case is a missed opportunity for this Court to address the role of intent in analyzing parental standing in ART cases.” Id. at 918.
Slip op. at 31-32. Opining that “this appeal is the paradigm of intent-based parentage in cases involving ART, where the couple not only evidenced their mutual intent to conceive and raise the child, but they also participated jointly in the process of creating a new life,” Superior Court concluded:
Here, our review of the certified record in this appeal easily supports a finding of parentage by intent. Indeed, Glover consistently represented over a thirteen-month period that she intended to share with Junior parentage of the couple’s child conceived through ART. As previously discussed, Glover contracted with Fairfax Cryobank and RMA Fertility and she assented to identifying Junior as the “co-intended Parent” and “Partner,” respectively. Even after doubting her romantic commitment to Junior, Glover continued to pursue the pregnancy with Junior’s financial assistance and shared emotional burden.
Glover further led her spouse to believe that they would share parentage. Junior participated in the decision to conceive their son with the shared intent to raise him together. Likewise, Junior consistently identified as an intended parent, and with Glover’s express consent and endorsement, Junior performed the role of an expectant parent, including participating in the selection of the sperm donor and naming their child after conception. During the evidentiary hearing, Junior testified that, in the role as the “co-intended Parent” under the Fairfax Cryobank contract, the couple collectively selected a sperm donor from Fairfax Cryobank based specifically on the donor’s physical appearance, interests, and genetic lineage. Junior explained, “We were looking for sperm donors who … resembled me as much as possible, because we … were us[ing] [Glover’s] egg, and we wanted our child to look as much like both of us as possible.” Thus, in identifying a photograph of the sperm donor, Junior observed, “he’s dark-skinned, like I am. He has almond shaped eyes like I do. He has a huge … wide smile like I do. He has high cheekbones like I do. In addition to that when we looked more deeply into the details, he’s a Sagittarius like I am.” In addition, both the donor and Junior traced their indigenous history to Benin, Africa. In all, Junior stated, “primarily, it was because … we shared so much in common—the donor and I—and [Glover] and I both kept remarking on how [it was] kismet … [.]”
Slip op. at 33-34.
In a concurring opinion, Judge King, joined by Judge Panella and Judge Murray, advocated for the Supreme Court to address the intent-based approach to parentage raised by this case:
Further, our High Court confronted the possibility of an intent-based approach in C.G. but chose not to adopt such an approach in light of the facts of that case. Of course, the Court could have endorsed an intent-based analysis as an alternative avenue for relief to applying contract principles in these types of cases, even if the Court decided such an approach would not have afforded C.G. relief in that case. The Court declined to do so. Rather, the Court indicated that it “must await another case with different facts before we may properly consider the invitation to expand the definition of ‘parent.’ ” C.G., supra at 441 n.11, 193 A.3d at 904 n.11 (emphasis added). The Court later reiterated that it was “unnecessary at this time to expand the definition of parent or endorse a new standard under the facts before this Court.” Id. at 443 n.13, 193 A.3d at 906 n.13 (emphasis added). Thus, I do not consider this issue one of “first impression” but an invitation to expand the already existing doctrines applicable in cases involving parentage where a child is conceived through ART. I repeat that “[s]uch is a province reserved to the Supreme Court.” Matter of M.P., supra.
Instead, I would urge the Supreme Court to take a close look at this case and decide whether our Commonwealth should employ an intent-based approach to determining parentage in cases involving ART. As the Majority observes, “this appeal is the paradigm of intent-based parentage in cases involving ART where the couple not only evidenced their mutual intent to conceive and raise the child, but they also participated jointly in the process of creating a new life.” (Maj. Op. at 919). In his concurring opinion, Justice Wecht described C.G. as “a missed opportunity for this Court to address the role of intent in analyzing parental standing in ART cases.” C.G., supra at 464, 193 A.3d at 918. The case before us should not serve as a similar “missed opportunity” for the Supreme Court to address the intent-based approach.
Concurring slip op. at 4-5.
The Pennsylvania Supreme Court granted allocatur to consider the following issues:
(1) Did the Superior Court’s en banc decision conflict with the holding of the Supreme Court of Pennsylvania in C.G. v. J.H., 193 A.3d 891 (Pa. 2018), by concluding the spouse of the biological mother of a child conceived through Assistive Reproductive Technology, who bore no biological relationship to the child, had a right to parentage of the child, where no contract term establishing the spouse as a legal parent existed and the Superior Court applied “intent-based” parentage, to reach its conclusion that an oral contract established the spouse as a legal parent?
(2) Should the doctrine of “intent-based” parentage be adopted in Pennsylvania in the context of a child conceived through Assistive Reproductive Technology?
(3) Did the Superior Court err in holding the spouse of the biological parent of a child conceived through Assistive Reproductive Technology, who bore no biological relationship to the child, had a right to legal parentage of the child as a matter of equity under the circumstances of this case?
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