Before March 20, Pennsylvania parents had four options for establishing parentage — the process by which a child’s parents are legally identified and defined. The only pathways were through biological connection, adoption, presumptions based on marriage and conduct, and contracts.
Some of those definitions might seem obvious — like biological parents, but families are developed in all sorts of ways. This is especially true for LGBTQ+ parents, whose family-planning often involves more steps.
For instance, non-gestational parents who use assisted reproductive technology (ART) or surrogacy often choose to establish parentage via contract during pregnancies and/or adopt those children after they’re born. But what happens if no contract is signed and parents split up before a child’s birth? What happens in a parentage dispute?
This was the problem at the crux of Glover v Junior, a lawsuit through which Nicole Junior sought parental rights regarding a child who was conceived during a marriage but born during a separation. The Pennsylvania Supreme Court first heard oral arguments for the case in Sept. 2024 — and they’ve finally issued a ruling.
“We believe the time has come for our law to embrace a fifth pathway to parentage…” reads the 54-page decision, which establishes a precedent in the state of Pennsylvania for intent-based parentage. This new legal framework now extends parental rights to those who lack other paths towards parentage but can demonstrate their intentions.
What does it mean to show intention?
Court documents outline Junior’s intent-based claims — including that she was heavily involved in conception by sharing the associated costs and injecting Chanel Glover with hormones throughout the months leading up to the conception and after. The former couple also attended obstetrics appointments together and entered into a joint contract with a doula. They signed a contract in anticipation of Junior’s confirmatory second-parent adoption of the child — a process that can’t officially begin until a child is born — and picked out a name for the child, which was to be hyphenated to reflect both parents.
As their relationship deteriorated, Glover stopped involving Junior in her prenatal care and planning. But Junior quickly attempted to establish pre-birth parentage through the family courts system.
That court ruled in her favor just weeks before the birth. Glover appealed, sending the case to trial. The court sided with Junior — citing parentage by contract, given the agreements the former couple entered before their falling out. But on appeal, a three-judge panel on the Superior Court disagreed. Junior attempted to re-argue the case claiming parentage by marital presumption — but because the pair was no longer a couple when the child was born, it was not granted. Throughout three years of litigation, Junior never got to see or meet her child.
But on March 20, the Pennsylvania Supreme Court decided that the contracts entered before and during pregnancy and the behavior of both parties in their efforts to get pregnant and before their falling out demonstrated that both Glover and Junior’s intended for Junior to share parenting rights.
Junior’s lawyer told The Philadelphia Inquirer that she aims to pursue custody arrangements in family court as soon as possible.
“Despite this big win on behalf of families, if I can just be honest, I am also reminded of the three years — three years — our son has been denied my love, care, and stability,” she told the Inquirer.
It’s not the first time years of heartache were at the center of a case for intent-based parentage, as the matter was previously considered by the state’s Supreme Court in 2018 following a different three-year legal battle.
In 2015, a non-gestational parent, known in court documents as C.G., sought partial custody for a child she claimed to help raise for the first six years of his life.
The facts of that case were very different, as C.G. did not keep records that showed her intentions and waited multiple years before seeking custody — but the Pennsylvania chapter of the American Academy of Matrimonial Law had filed an amicus brief for that case, arguing that a non-biological parent should be afforded a custody hearing based on the assumed parental status and duties she held before. The court decided that C.G. failed to establish that she intended to parent the child — and she was ultimately denied parental rights.
But that ruling failed to consider various aspects of LGBTQ+ culture. For instance, C.G. and her former partner had a commitment ceremony, but reporting on the ruling noted that their choice not to register as domestic partners was used against C.G. in the case. Her failure to pursue adoption (which wasn’t legal in the state where the former couple resided until 2015, three years after their separation) was also cited as a detail that was used against her in court.
Until now, biological parents and gestational carriers had the upper hand because they could easily establish parentage in a way that those without the same ties faced limitations during a dispute.
Helen E. Casale, a family law expert and shareholder at Hangley Aronchick Segal Pudlin & Schiller, wrote an amicus brief on behalf of the Pennsylvania chapter of the American Academy of Matrimonial Law in support of developing a doctrine for intent-based parentage — explaining that it is a logical continuation of current jurisprudence related to assisted reproductive technology. The brief argued that a standard approach to determining intent fills a gap in current laws.
The court’s decision notes “that parentage may be established by proof of intent shared by two parties to use ART to conceive and co-parent a child together, even without meeting all the formalities of contract law.”
Although the new ruling pays special attention to children conceived through ART, Casale said these guidelines aren’t specifically limited to those situations and can protect families of differing circumstances in the future.
“We will not require those parents who use ART to transact or bargain with each other,” it continues. “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 a more dignified means to establish parentage for couples who use ART to conceive.”
How can I protect myself?
The justices decided that it is enough for a court that is faced with determining intent-based parentage to “consider all evidence from all relevant time periods — including, when applicable, pre-conception, during conception, during gestation, during birth, and post-birth — to determine whether the parties jointly undertook ART intending to conceive and co-parent the child together.”
The court encouraged couples in similar circumstances to Junior and Glover to document their intentions in writing — which would provide strong evidence of intent during a conflict even if those writings fail to meet the standards of a contract.
Casale also encourages parents to formalize agreements via contracts and pursue confirmatory adoptions. The new ruling means this is no longer required to prove legal parentage, but that doesn’t mean it’s not still a good idea.
“As a family lawyer, my job is to see worst-case scenarios,” Casale said. “There are bad actors out there and you need to protect yourself against those bad actors.”
The problem, she underlined, is that most people don’t view their current partners that way and won’t feel record-keeping is necessary. Additionally, many lack the financial means for lawyers and contracts — but informal documentation is better than nothing.
“Many LGBTQ couples — especially lesbians, they choose many different ways to start a family, and it doesn’t necessarily mean it’s through fertility clinics or under the supervision of a doctor,” Casale noted, emphasizing the importance of memorializing intentions to protect parental rights.
She recommends developing a one or two page document that outlines intentions and getting that document notarized — which is often free at banks and inexpensive elsewhere. The document might not meet the standards of a contract but it will demonstrate intention in court. Couples can consider language like, “We’ve decided to start a family,” and list the ways in which they’ll share in the process to pursue that goal together. The document can be continually updated to reflect costs and new decisions.
“It might be worth an hour or two consultation with a lawyer,” Casale added, explaining that lawyers can additionally help couples understand contracts with third parties — like fertility clinics and sperm banks.
She underlined that confirmatory adoptions are still strongly encouraged — as they’re the most protective and will be honored across state lines.
While the Trump administration continues to threaten LGBTQ+ rights, there’s more than can be done at home to protect queer families.
Pennsylvania hasn’t yet passed the Uniform Parentage Act — which would codify an expanded definition of the term “parent” and provide a standardized framework for establishing parentage beyond traditional understandings.
An attempt to pass legislation that would create this kind of guideline failed to pass the state senate at the end of the last session — but once it’s reintroduced, it will be up for consideration in Pennsylvania’s General Assembly. Casale recommended reaching out to legislators to urge them to act soon.
“I can’t imagine that there would be any family lawyer, or especially any family lawyer that services the LGBTQ community, that wouldn’t be worried about this administration and what they might do,” she said, adding that LGBTQ+ Pennsylvanians should feel a little more confident about their abilities to continue living their lives.
“I think they should feel good about the fact, at least in the Commonwealth of Pennsylvania, that we have an astute Supreme Court out there helping and putting children first.”