PHILADELPHIA - The Pennsylvania Supreme Court has added a new way to become a parent, in a case concerning divorced lesbians who, now, share a child.
Though only one of the women birthed a child conceived using a sperm donor, the other staked her claim as a parent with her intent to raise the child, a unanimous court ruled March 20 in a victory for groups like the American Civil Liberties Union and the National Center for Lesbian Rights.
Nicole Junior's fight to be legally deemed a parent drew support from them and others, as they urged Pennsylvania to adopt "intent-based parentage."
“Having a secure legal parent-child relationship is critical to a child’s wellbeing,” said Polly Crozier, Director of Family Advocacy at GLBTQ Legal Advocates & Defenders.
“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.”
Previously, the state recognized four ways to become a legal parent: biology, adoption, the presumption a child born during a marriage is the husband's and a contract for Assistive Reproductive Therapy.
Junior and Chanel Glover used ART after their marriage in January 2021 to have a child. A donor picked because of his physical similarities to Junior was used to impregnate Glover, who was listed as the "intended parent" on a contract with Fairfax Cryobank.
There was no line for a co-intended parent, like Junior. In November 2021, they signed an agreement with Jerner Law Group in anticipation of Junior moving to adopt the child as a step-parent.
Glover's own affidavit said the two "intend to remain a committed couple" while raising the child. Instead, the relationship went south. By March 2022, Glover told Junior she no longer wanted to proceed with the adoption, shut her out of pregnancy events like doctor appointments and cancelled a baby shower they had planned together.
This caused Junior to go to court the next month seeking an emergency declaration that she is a parent of the child. A family court judge ruled for Junior and said a custody complaint could be filed after the child was born.
The Superior Court then ruled Junior had established parentage both through contract and with her intent, leading to the issue coming before the state Supreme Court.
The justices disagreed on the contract issue, finding Junior had not established any legally binding agreement to her becoming a parent. That led to an analysis on intent-based parentage.
Glover had argued Junior lost her rights on that front because she moved into their basement, left the area for several months and then moved out of the marital residence. Glover's lawyer called intent-based parentage "a slippery slope by which the role of parent would be potentially subjected to result-oriented applications."
Meanwhile, the advocacy groups said adopting it would fill a gap in Pennsylvania family law. The state House of Representatives in June passed the Uniform Parentage Act, which would protect the rights of intended parents but hasn't progressed through the Senate.
The bar associations of Pennsylvania, Philadelphia and Allegheny County said the Supreme Court should adopt intent-based parentage in this case because it is too urgent to wait on lawmakers to do so.
Justice Kevin Dougherty's majority opinion said Pennsylvania law foremost aims to protect children. Dougherty is a former judge of the Philadelphia Family Court.
"In terms of stability and support, intent-based parentage in the ART context could provide a second source of love, care and support - both emotional and financial," he wrote.
"(I)n the ART context, there is typically no second biological parent since a gamete donor would have contracted away parental rights. And it is apparent that in some ways, parents who conceive using ART essentially demonstrate their stability and dedication to a child by going through a more rigorous, time-consuming and expensive process to conceive a child than do many parents who conceive through sexual intercourse."
Dougherty cited a 2017 Vermont case in which a woman was granted parentage of a child adopted by her partner after their relationship began. The Mississippi Supreme Court ruled in 2018 that the woman who gave birth to a child through ART couldn't argue her former partner had failed to establish intent to become a parent.
"We will not require those parents who use ART to transact or bargain with each other," Dougherty wrote.
"The decision made within a loving couple to have a baby is generally not a quid pro quo, and we decline to put courts in the position of parsing through couples' actions to determine whether they were done gratuitously or as an exchange for consideration.
"We prefer to recognize a more dignified means to establish parentage for couples who use ART to conceive."
The court did, however, stop short of adopting a presumption that intent-based parentage applies automatically in the cases of married couples using ART.