A lesbian couple planned to have a baby using in vitro fertilization, but when their marriage started to crumble, they found themselves in court arguing over custody. In a recent 2-1 ruling, the Pennsylvania Superior Court ruled in favor of the biological mother, saying there was no “enforceable contract in place” conferring rights on the bio mom’s spouse.
The case highlights how crucial it is for LGBTQ families to take steps to protect their parental rights when they are pursuing IVF and other assisted reproductive technology (ART).
Below, we look at the case, Glover v. Junior, No. 1369 EDA 2022 (Pa. Super. Feb. 24, 2023), and offer some guidance to couples looking to add to their family using ART.
According to the court’s decision, Chanel Glover and Nicole Junior married in California in 2021 and later moved to Philadelphia, where they pursued in vitro fertilization. Doctors at a fertility clinic retrieved Glover’s eggs, and she contracted with a local cryobank for storage in February 2021. Glover is listed in the agreement as “Intended Parent” and referred to as “Client,” and Junior is listed as “Co-Intended Parent.” The contract states: “Client will be the legal parent of the child born to Client with the use of donated sperm and will be responsible for their support and custody.”
Glover and Junior jointly selected the sperm donor and later signed an updated fertility clinic document that listed Glover as “Patient” and Junior as “Partner.” Ultimately, Glover became pregnant in August 2021, and the couple hired a lawyer a few months later to prepare for Junior to adopt the child. In December, Glover signed a document indicating that she intended for Junior to be a parent to the child with full rights, according to the court decision.
The couple separated in January 2022, and Glover filed a complaint for divorce in April. Junior subsequently filed a petition seeking the pre-birth establishment of her parentage and an emergency petition to establish the same.
In a May 4 court order, the Philadelphia Court of Common Pleas confirmed Junior’s custodial rights. The trial court based its ruling on the December 2021 document in which Glover said she intended for Junior to have full parental rights. The court also noted that both parties had contracted with a fertility clinic, sperm bank, and birth doula in preparation for the child’s birth.
The child was born on May 25. Glover appealed the trial court’s ruling.
Documents Didn’t Establish Non-Bio Mom as Legal Parent
The Superior Court reviewed several decisions that weighed in on the establishment of parentage by contract and concluded that “an enforceable contract” is required to confer “legal parental status” in Pennsylvania when a baby is conceived via assistive reproductive technology. Then, looking at the facts of the case, the court reversed the trial court’s ruling on the ground that none of the applicable documents identify Junior as the legal parent to the child.
Specifically, the court noted that Junior was not a party to the cryobank sperm donation agreement. Both Glover and Junior had signed an agreement with the fertility clinic. However, this agreement explained the procedure and payment obligation but did not confer parental rights on Junior, the court said.
As for the adoption documents, the court pointed out that there was no requirement that Junior be listed on the child’s birth certificate or that the adoption process be waived. “To the contrary, [the documents] demonstrate that the parties intended that a formal adoption process was necessary before any legal parentage rights could be conferred on Junior,” the court said.
In a dissenting opinion, Judge Mary Jane Bowes said Junior had demonstrated a contract-based right to parentage based on “the couple’s collective intent and shared cost in conceiving a child.”
Take Action to Protect Your Parental Rights
It’s important to note the decision is an unpublished, nonprecedential decision, which means that its weight and influence are uncertain at this point.
That said, LGBTQ individuals – and other people pursuing ART to have children – should take precautions to protect their parental rights. It would be wise for anyone signing pre-birth documents to consult with independent counsel. An experienced ART/adoption or family law lawyer can help explain what these documents mean and ensure your parental rights to an unborn child are protected.
Pennsylvania couples who haven’t completed a second-parent adoption to secure their legal rights should do so as soon as practical.
KingSpry’s team of adoption and ART law attorneys are well-versed in legal matters related to this developing area of the law. Please get in touch with our team if you have questions or need help obtaining or protecting your parental rights.