A Pennsylvania court has denied a nonbiological mother parental rights to the child she and her former spouse, the biological mother, had planned and created together. It is the second recent case in the U.S. to do so, and points to the critical need for parentage law reform.
Junior and Glover (their last names), a married couple, had started towards parenthood together via in vitro fertilization (IVF), using anonymous donor sperm, and Glover became pregnant. They had chosen a sperm donor with similar looks and heritage to Junior, split the costs of IVF treatment equally, and chosen a name for the child together. Junior injected Glover with the fertility medicines and went with her to the obstetrician.
The couple also retained a lawyer in preparation for doing a co-parent (second-parent) adoption. (Every major LGBTQ legal organization advises doing this, for reasons I’ve explained here.) The adoption, like all adoptions, could only actually be done after the birth of the child. The couple also signed affidavits with the lawyer indicating that Glover was seeking to have Junior adopt the child; Glover’s affirmed that she understood Junior “will become a legal parent, with rights equal to my rights as a biological parent.”
Their relationship foundered, however, and Glover filed for divorce one month before the child was due and changed her mind about proceeding with an adoption. Junior then filed a petition seeking the pre-birth establishment of parentage. The Philadelphia Court of Common Pleas in early May granted this, and said she should be put on the child’s birth certificate when it was born. The Pennsylvania Superior Court, however, ruled Friday that Junior had no parental rights.
The Ruling
It is clear from information in the ruling that Junior and Glover intended to start their family together. The Superior Court, however, said that Junior failed to show “an enforceable contract” that conferred parental rights. Only Glover had signed the contract with the sperm bank, they said (although Junior was listed as “co-intended parent”) and although they both signed an agreement with the fertility clinic, “It was not an agreement intended to confer any parental rights on Junior, but to explain the procedure and the obligation for payment of fees,” the court said.
As for the affidavit and co-parent adoption retainer agreement with their lawyer, these actually “demonstrate that the parties intended that a formal adoption process was necessary before any legal parentage rights could be conferred on Junior.”
The Dissent
One member of the three-judge panel, Judge Mary Jane Bowes, dissented, stating that Junior had indeed established a contract-based right to parentage, based on “the couple’s collective intent and shared cost in conceiving a child,” and because “Glover’s actions and representations … demonstrated her assent to Ms. Junior’s parentage.” Junior “relied upon these actions and representations to her detriment,” and thus affirming her parentage is also a matter of equity.
Why Parentage Law Reform Is Needed
Bowes goes even further, however, calling on the court to use the case as a “paradigm … to affirm the viability of intent-based parentage in cases involving assisted reproductive technology where the couple not only evidenced their mutual intent to conceive and raise the child, but they also participated jointly in the process.”
In other words, Pennsylvania’s law needs updating to fully protect children in all types of families today, and this case could have helped move it in that direction.
One important way of doing this that Polly Crozier, director of family advocacy at LGBTQ legal organization GLAD, told me in a response to a recent Oklahoma court decision denying parentage to a nonbiological mom, is to update state laws using the 2017 Uniform Parentage Act (UPA), model legislation developed by the Uniform Law Commission, a non-partisan body of state lawmakers, judges, scholars, and lawyers. The UPA was first developed in 1973, then updated in 2002 to expand ways of determining legal parentage for children born through assisted reproduction, and in 2017 to ensure that state parentage laws remain constitutional by providing equality and paths to parentage for LGBTQ families, among other changes.
Seven states (California, Colorado, Connecticut, Maine, Rhode Island, Vermont, and Washington) have adopted the 2017 UPA or substantially similar legislation. New Hampshire and New York have also adopted some similar provisions.
Pennsylvania has not adopted any form of the UPA. As Bowes’s comments make clear, its current laws are clearly failing to protect families today. A child will now be missing out on the love and support of one of the parents who helped create them.
Stephanie Haynes, executive director of Philadelphia Family Pride (PFP), an organization for LGBTQ families, said in a statement that the organization was “shocked and saddened” by the ruling. Additionally:
PFP, as part of our educational mission, holds this case up to show the need for our legislature to pass a law like the Uniform Parentage Act (HB 115) conferring parental rights on intended parents using assisted reproduction. We also strongly encourage couples using an unknown sperm donor to sign an intended parents agreement (like one used for known sperm donors). Finally, same-sex couples in Pennsylvania who haven’t, should go through the second parent adoption process as soon as possible.
She added:
Finally, since we elect judges in the commonwealth of Pennsylvania, we urge voters to do their due diligence when choosing who to vote for in this year’s primary and general elections. Supporting judicial candidates who will protect LGBTQ rights is important at all levels of the judiciary in Pennsylvania. This case is a prime example of that.
It is still too early to know if the non-bio mom will appeal to the state supreme court and the chances of them hearing the case, but we will continue to follow this case.
Pennsylvania is not the only state whose parentage laws need updating. As Polly Crozier, director of family advocacy at LGBTQ legal organization GLAD, told me for my 2023 look-ahead piece, there is a “patchwork” of state parentage laws and “still way too many states that don’t have access to adoption for two single people, protections for children born through assisted reproduction, protections for children born through surrogacy, or gender-inclusive parentage laws.” She asserted, “We have to have a scheme where every child is able to be secured to their family in every state. Until we do, we can’t move on. We have to be relentless.”
Moving Forward
Please check out the “What LGBTQ+ Families Need to Know” guide from GLAD, NCLR, COLAGE and Family Equality for more information on protecting your own family, and reach out to an LGBTQ-competent lawyer in your own state to discuss the specifics that apply to you. (I am not a lawyer myself.)
Additionally, please check with LGBTQ advocates in your state, like Philadelphia Family Pride, to see if they are working on improvements to your state’s parentage laws. (If you’re in Massachusetts like me, connect with the Massachusetts Parentage Act Coalition and read this post about the current bill that has been introduced.) Get involved in making these changes happen, especially if they touch on challenges your family had or is having. Often sharing your story is a powerful way to connect with people and move legislation forward. This legislation matters because children matter, regardless of who their parents are or how their families were formed.
