The Pennsylvania Supreme Court heard oral arguments in Glover v. Junior — a case that could shift how the state approaches parentage matters, the process to legally define a child’s parents, as it relates to assisted reproductive technology (ART).
The case concerns a formerly married couple, Chanel Glover and Nicole Junior, and a child conceived via in vitro fertilization using a sperm donor during their marriage. Glover became pregnant, but the couple separated during that pregnancy. Glover decided she no longer wanted Junior to co-parent the child, resulting in litigation as Junior attempted to prove parental rights following the child’s birth.
Both a trial court and superior court sided with Junior, finding that existing contracts the former couple signed with service providers (medical practitioners and other birthing professionals) were enough to prove that they intended for Junior to co-parent the conceived child.
But Glover’s lawyer, Barbara Schneider, noted that Junior’s actions during the couple’s separation — which included moving to the West Coast for a writing course following Glover’s first trimester — show that Junior lacked intention to parent the child. Junior’s lawyer, Megan E. Watson, has argued that actions during a separation should not be used to determine intention to parent.
This is how the concept of parentage by intent — and two opposing views on whether or not the concept should be defined and applied — entered a case that simultaneously concerns parentage by contract.
Following the decisions that ruled in Junior’s favor, the state Supreme Court granted Glover an appeal, resulting in continued delays to custody and family court proceedings. After two-and-a-half years of litigation, Junior has not met the child despite her wins in court.
On Sept. 11, justices listened to oral arguments.
Is a contract to conceive a contract to parent?
Schneider argued that parental rights should not be granted to Junior, underlining her belief that the existing contracts in this case do not clearly outline Junior as a parent — a role that comes with specific caregiving responsibilities.
She argued that the contracts between the former couple and these providers are financial in nature — outlining who would pay fees associated with services — and therefore shouldn’t be applied to matters concerning the care of the child. She described Junior as the “partner” of Glover in these contracts — rather than “co-parent” — and equated Junior to a “step parent, at best.”
She argued that even when two parties agree to participate in the conception of a child, that decision does not demonstrate intent-based parentage because the two parties did not establish a formal contract with each other about what would happen after the child is born. She noted that this type of contract specifically lacks an agreement about parental duties, such as caregiving following the child’s birth.
When asked by a justice to clarify her position on intent-based parentage, Schneider agreed that her position is that the court should not recognize parentage by intent at all and emphasized that the facts of this specific case do not support intent-based parentage either. She’s more focused on the contracts involved in this specific case.
“I have an issue with the finding of a contract to begin with and the assumption of an intent-based parentage as well as intent-based parentage in this case,” she noted, underlining that she’d prefer these matters be addressed by the legislature rather than by case law. “I think intent-based parentage is a slippery slope.”
The justices did not seem convinced of her arguments, noting that intent to conceive is considered intent to parent in other circumstances and asking why that should not be applied to this case.
One justice proposed creating a legal principle that would further clarify intention to parent by explicitly stating, “We’re not going to leave these children in limbo that are being brought into this world without deciding who their parents are. In the world of reproductive technology, if you agree to conceive a child — to create a child, the law will presume you also agree to parent the child unless you disavow.”
Contracts with sperm donors were brought up as an example of contracts that currently disavow parental rights.
Will this case be used to make decisions about intent-based parentage?
Previous decision-makers in this case have used a different framework — parentage by contract — to guide the rulings that favored Junior. However, Junior’s lawyer is now using the matter to urge the courts to create an additional parentage framework — parentage by intent, which does not currently exist in Pennsylvania.
Because this wasn’t necessary to make Junior’s case, discussion emerged about whether or not this case is an appropriate vehicle to explore the concept of parentage by intent.
“Just because there’s one legal basis to find parentage does not mean that this court cannot find other legal means to find parentage,” Watson disagreed.
“There is a big gap in our law right now addressing the issues of ART and children that are conceived by ART — whether we are talking about heterosexual couples or same-sex couples,” she continued. “And this case is the perfect example of what happens because of that gap.”
She underlined that the language used in contracts varies by facility and provider and that the interpretation of that language varies by officials across the state — creating a lack of uniformity and clarity that leaves prospective parents at risk.
A concern was raised about negative consequences of establishing a new parentage by intent precedent — that it could leave children vulnerable if they’re conceived unintentionally (by people who have sex but do not intend to become parents). Watson argued that people who “do the deed” — whether that means having sex or entering contracts to conceive — become parents by intent when that child is born.
But in her brief, Watson proposed a slightly different framework — a standard for analyzing parentage by intent which includes considering marital status at the time of conception and how both parties present themselves to their communities in relation to the pregnancy. For instance, intent would be shown two ways — if the parties are married to each other and if they’re presenting themselves as parents-to-be.
Justices questioned how this approach is different from parentage by estoppel — which occurs when one spouse treats the other spouse as a child’s parent even though the two are not biologically related.
Watson further clarified that although the two approaches are similar, they are not one in the same. She also noted that this case required more invasive documentation and time-consuming litigation than would exist when typical estoppel presumption exists, signifying a need for a new and clarifying approach for ART users. The lack of a more expedient process, Watson said, makes the matter an issue of equity.
ART can refer to in vitro fertilization-embryo transfer, gamete intrafallopian transfer, zygote intrafallopian transfer, and frozen embryo transfer — although in vitro fertilization represents over 99% of ART procedures. The rate of ART use in Pennsylvania is higher than the national average by state.
Watson argued that her proposal expands rather than replaces contract-based parentage for ART cases. She said this further clarification would be a “child-focused” approach that would allow similarly situated families — no matter how their children are conceived — to be treated the same by the law.
“I want to recognize the differing ways in which families are created,” Watson emphasized. “And we should be valuing… all of our families — whether they’re created more naturally or whether they’re created more intentionally through ART.”
What’s next in Glover v. Junior?
Because the court has 90 days to file a formal opinion on the matter, experts believe a decision about the case will be made in December. It is possible for the previous rulings in favor of Junior — which are largely based on parentage by contract — to be overturned. Justices may or may not include a broader opinion that creates new laws and proceedings related to intent-based parentage.
