The Pennsylvania Supreme Court has ruled that a nongenetic, nongestational lesbian mother is a legal parent to the child she and her former spouse had planned for and conceived through assisted reproduction—and it asserts the principle of intent-based parentage, a big win for LGBTQ and other families formed via assisted reproduction.
The Case
Nicole Junior and Chanel Glover, a married couple, had started towards parenthood together via in vitro fertilization (IVF), using anonymous donor sperm, and Glover became pregnant, according to court documents. 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. 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.
In 2023, as I reported, the Pennsylvania Superior Court ruled that Junior had no parental rights. The same court then heard the case “en banc” (with all the judges of the court) and reversed the ruling, affirming Junior’s parentage.
Glover then appealed to the Pennsylvania Supreme Court, where her lawyers argued that a contract to conceive is not the same as a contract to parent, and that the court should not recognize parentage by intent. Junior’s lawyers, however, argued that the court should do so.
The Ruling
In its ruling (PDF) yesterday, the court cited evidence of the couple’s plans to parent together, including “jointly signed agreements related to the assisted reproduction and Junior’s full participation in the planning and process of family building,” notes GLBTQ Legal Advocates & Defenders (GLAD Law) in a press release. GLAD Law and the National Center for Lesbian Rights (NCLR), along with the American Civil Liberties Union (ACLU), ACLU of Pennsylvania, Family Equality, Mazzoni Center, Philadelphia Family Pride, and COLAGE had filed a friend-of-the-court brief in the case.
The court also affirmed that contract law does not apply here, because “a couples’ decision to have a baby together is often profoundly intimate and may not be so easily reduced to a transaction.” Instead, what matters is the intent to parent. “We thus adopt the doctrine of intent-based parentage into our common law,” the court said—a statement with far-reaching implications.
As Polly Crozier, director of family advocacy at GLAD Law, observed:
Having a secure legal parent-child relationship is critical to a child’s wellbeing. Many hopeful parents across Pennsylvania—including many LGBTQ+ people—are building or seeking to build loving, stable families through assisted reproduction. With this decision the Court has not only, importantly, affirmed that Nicole Junior is a parent to her child, it rightfully advances application of Pennsylvania common law so that a child born through assisted reproduction isn’t stripped of a loving parent.
“Children born through assisted reproduction deserve the same security and stability as other children,” said Shannon Minter, legal director at NCLR. “This decision from the Pennsylvania Supreme Court will ensure that families created through assisted reproduction have clear protections and that lower courts have clear guidance about how to apply the law to these families.”
The Implications
Pennsylvania now becomes the 19th state (plus D.C.) to recognize an intended parent as a legal parent, regardless of marital status, if they consent to the conception of a child born using assisted reproduction, per the Movement Advancement Project.
Although the intent to parent can now be used to establish legal parentage in Pennsylvania, the ruling importantly references the friend-of-the-court brief above to caution that “LGBTQ+ parents are often advised to complete a confirmatory adoption to ensure full faith and credit of parentage in other jurisdictions; while these parents who use ART [assisted reproductive technologies] can now rely on intent-based parentage if a dispute arises in Pennsylvania, the Court does not discourage them from taking other measures to preserve their rights in other states.” For more on this critical topic, please see “LGBTQ Paths to Parentage Security,” a guide that GLAD Law and I created that includes further information about securing your parentage.
Congratulations to Junior and to all of the families in Pennsylvania who will benefit from yesterday’s ruling.