Glover, C. v. Junior, N.

Opinion

J-A26012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHANEL GLOVER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : NICOLE JUNIOR : No. 1369 EDA 2022

Appeal from the Order Entered May 4, 2022 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): D22048480

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 24, 2023

Chanel Glover (Glover) appeals from the order entered in the Court of

Common Pleas of Philadelphia County (trial court) granting the petitions filed

by her former spouse Nicole Junior (Junior) seeking the pre-birth

establishment of parentage of the child (Child) conceived through invitro

fertilization (IVF) treatment during their marriage. Because we disagree with

the trial court’s conclusion that Junior’s parentage was established by

contract, we reverse its order in its entirety.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A26012-22

I.

A.

The relevant facts and procedural history of this case are as follows.

Glover and Junior, a same-sex couple, were married in San Bernadino,

California in January 2021. They decided to pursue IVF treatment and moved

to Philadelphia shortly thereafter to be closer to family. The couple initiated

the IVF process through RMA Fertility Clinic and Glover’s eggs were retrieved

in preparation for fertilization by a sperm donor.

In February 2021, Glover entered into an agreement with Fairfax

Cryobank for donated sperm and she was the sole signatory to the contract.

(See Fairfax Cryobank Agreement, 2/03/21, at 5). In the agreement, Glover

is listed as the “Intended Parent” and she is referred to throughout the

document as “the Client”; Junior is listed as the “Co-Intended Parent.” (Id.

at 1). The contract includes a provision addressing the “Legal Status of Donor-

Conceived Children” which states as follows: “Client will be the legal

parent of the child[ren] born to Client with the use of donated sperm and

will be responsible for their support and custody. Client may wish to

consult legal counsel regarding co-parent rights.” (Id. at 3) (emphasis

added). The parties jointly chose the sperm donor.

In July 2021, both Glover and Junior signed an agreement with RMA

advising of the possibility that Glover could undergo multiple IVF cycles and

of the company’s refund policy. Glover signed the agreement as the “Patient”

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and Junior signed as her “Partner.” (RMA Care Share Agreement, 7/11/21, at

2).

Glover became pregnant in August 2021, with a due date of May 18,

2022. The couple mutually decided on a name for Child and hired a doula to

provide services during the pregnancy. In October 2021, Glover and Junior

retained the Jerner Law Group, P.C. as counsel to provide adoption services

in anticipation of Junior’s adoption of Child. (See Engagement Letter,

10/13/21).

On December 5, 2021, the parties contemporaneously executed

separate affidavits wherein they acknowledged that Glover is the biological

mother of Child. The affidavits essentially mirror one another and Glover’s

affidavit provides in pertinent part:

* * *

2. I am married to Nicole Shawan Junior and we intend to remain a committed couple.

3. I am seeking to have my spouse, Nicole Shawan Junior adopt this child in order to provide this child with the legal stability of two parents.

4. I understand that this means that Nicole Shawan Junior will become a legal parent, with rights equal to my rights as a biological parent.

5. I understand that this means Nicole Shawan Junior will have custody rights and child support obligations to this child [if] we ever separate in the future.

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7. I understand that an adoption decree is intended to be a permanent court order, which cannot be changed or undone in the future.

10. I want Nicole Shawan Junior to become a legal parent to this child because I believe it is in the best interests of the child.

(Affidavit of Glover, 12/05/21) (emphasis added). Additionally, both Glover

and Junior averred that they “have been advised of [the] right to seek

separate legal counsel on the issue of this adoption and I have chosen not to

seek outside counsel beyond Jerner Law Group, P.C.” (Affidavits of Glover

and Junior, at ¶ 8).

B.

The couple experienced marital issues and in January 2022, Junior

moved from their shared bedroom into their basement. Junior traveled to

Portland and advised Glover that she intended to move out of their residence

when the lease expired in July 2022. Glover stopped advising Junior of her

obstetrics appointments and cancelled all other joint plans concerning the

pregnancy, including a baby shower. Glover also informed Junior that she no

longer intended to go forward with adoption proceedings.

Glover filed a complaint in divorce on April 18, 2022. Junior filed a

petition seeking the pre-birth establishment of parentage, along with an

emergency petition to establish the same. After a hearing on May 3, 2022,

the trial court entered an order granting Junior’s petitions holding that she is

the legal parent of Child. The order directed Glover to inform Junior of when

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she goes into labor and provided that Junior be allowed access to Child. The

trial court ordered Glover to list Junior as Child’s second parent on the birth

certificate and on the birthing parent’s worksheet provided by the state. (See

Order 5/04/22). The court advised that its order could not be construed as a

custody order, and that the parties may file a custody complaint when

appropriate.1 Glover timely appealed and she and the trial court complied

with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

In its Rule 1925(a) opinion, the trial court held that Junior is the legal

parent of Child pursuant to the law of contracts because the parties “formed

a binding agreement for Junior, as a non-biologically related intended parent,

to assume the status of legal parent to Child through the use of assistive

reproductive technology.” (Trial Court Opinion, 8/01/22, at 9-10; see id. at

7). The court reached this conclusion because the then-married parties,

“jointly consulted with and executed contracts with a fertility clinic (RMA), a

sperm bank (Fairfax Cryobank) and later a doula in preparation for childbirth

. . . [and] both Glover and Junior signed affidavits which memorialized their

joint intent to have Junior adopt the Child[.]” (Id. at 9). The court also made

clear that it based its decision solely on the law of contracts as interpreted by

1 Child was born on May 25, 2022, and Junior initiated custody proceedings shortly thereafter.

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established Pennsylvania caselaw and not on any other legal doctrine. (See

id. at 13).

II.

On appeal, Glover contends the trial court erred in determining that

Junior is Child’s legal parent because it summarily concluded, without factual

or legal support, that Junior is Child’s legal parent without identifying a

supporting contract theory or providing the terms of an enforceable contract

that would give legal rights to Junior. (See Glover’s Brief, at 24).2 Glover

also maintains that the trial court improperly found waiver of her challenge to

its subject matter jurisdiction to rule on Junior’s petitions and contends the

issue of parentage was not ripe for review. (See id. at 4). Glover argues that

absent successfully pursuing parentage through the adoption process, Junior

has no legal status regarding Child. (See id. at 21-38).

Parentage of a child is typically established “through a formal adoption

pursuant to the Adoption Act[3], or when two persons contribute sperm and

2“In considering this pure question of law, our standard of review is de novo and the scope of our review is plenary.” Ferguson v. McKiernan, 940 A.2d 1236, 1242 (Pa. 2007) (citation omitted). We are also mindful that in considering the language of a contract, we must construe it only as written and may not modify the plain meaning under the guise of interpretation. See Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 187 (Pa. Super. 2013).

3 23 Pa.C.S. §§ 2101-2938.

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egg, respectively, either through a sexual encounter or clinical setting[.]”

C.G. v. J.H., 193 A.3d 891, 803 (Pa. 2018). However, because of the

“increased availability of reproductive technologies to assist in the conception

and birth of children, the courts are recognizing that arrangements in this

latter context may differ and thus should be treated differently than a situation

where a child is the result of a sexual encounter.” Id. Because the willingness

of persons to act as reproductive donors and gestational carriers is dependent

at least in part on extinguishment of their parental claim to any resulting child

and of any obligation to provide the child with financial support, “contracts

regarding the parental status of the biological contributors . . . [must be]

honored in order to prohibit restricting a person’s reproductive options.” Id.

at 903-04 (citation omitted). Moreover, after a child is conceived through the

use of a surrogate and an egg donor, both of whom contracted away any

parental rights to the child, the non-biologically related intended parent’s

contract to assume the role of legal parent is enforceable. See In re Baby

S., 128 A.3d 296, 298 (Pa. Super. 2015). This issue has been considered in

several different contexts.

In Ferguson, our Supreme Court considered the enforceability of an

oral agreement pertaining to parentage between the two biological parents ─

the sperm donor and the prospective mother. The parties agreed that the

donor would provide sperm for mother’s IVF treatment and relinquish any

rights arising from his biological paternity of the resultant child(ren). In

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exchange, mother agreed not to seek child support from him. See id. at

1241. Mother gave birth to twins and the parties acted consistently with their

agreement for approximately five years, when mother filed for child support.

Our Supreme Court held that the parties’ agreement was binding and

enforceable against the biological father and that mother was barred from

seeking child support. See id. at 1248.

In In re Baby S., we considered the establishment of parentage by

contract in the context of a surrogacy arrangement. In that case, husband

and wife entered into a service agreement for IVF treatment with a company

that coordinates with gestational carriers. The agreement identified husband

and wife as the “Intended Parents” and they were matched with a gestational

carrier. The couple hired counsel to represent them through the surrogacy

process and wife made clear that she wanted to be named the mother on the

child’s birth certificate without having to adopt the child.

Husband and wife also executed an agreement with an anonymous egg

donor providing that, “the Intended Mother shall enter her name as the mother

and Intended Father shall enter his name as the father on the birth

certificate of any Child born from such Donated Ova . . . Donor

understands that the Intended Parents shall be conclusively presumed to

be the legal parents of any Child conceived pursuant to this Agreement.”

Id. at 299–300 (record citation omitted) (emphasis added).

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The husband and wife additionally entered a contract with a gestational

carrier identifying them as the intended parents, obligating them to “accept

custody and legal parentage of any Child born pursuant to this Agreement”

and averring that the intended mother wished to be the mother of a child who

was biologically related to her husband. Id. at 300. The agreement made

plain that the gestational carrier would have no parental rights or obligations

with respect to any child conceived pursuant to the contract.

The surrogate became pregnant with an embryo created from father’s

sperm and the egg donor’s egg. Although wife primarily financed the

procedure, she refused to sign the necessary documentation to record her

name on child’s birth certificate because of marital difficulties. While

pregnant, the gestational carrier sought a court order declaring husband and

wife to be the legal parents of the child. See id. at 301. When child was

born, the gestational carrier was named as the mother and during the ensuing

court proceedings, wife argued that the gestational carrier contract and

related agreements were unenforceable. The trial court disagreed, and

entered an order confirming wife as the legal mother of Child, a non-biological

related person. See id. at 298. We affirmed the trial court’s order confirming

her parentage on appeal.

Finally, in C.G., our Supreme Court considered the issue of parentage

by contract where a former same-sex partner asserted standing to seek

custody as the parent of a child conceived through use of a sperm donor during

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her long-term non-marital relationship with the biological mother. In holding

that she did not, the Court opined that the former partner was not a “parent”

because she had no biological connection to the child, had not officially

adopted the Child, and had not entered into the type of contract that our

Courts have recognized as affording legal parentage through contract. See

id. at 442-43. The Court denied standing to C.G. despite the fact that she

had resided with the biological mother and the child for five years. In doing

so, the Court observed that “the case law of this Commonwealth permits

assumption or relinquishment of legal parental status, under the narrow

circumstances of using assistive reproductive technology, and forming a

binding agreement with respect thereto.” Id. at 904 (emphasis added).

What those cases teach us is that “there appears to be little doubt that

the case law of this Commonwealth permits assumption or relinquishment of

legal parental status, under the narrow circumstances of using assistive

reproductive technology, and forming a binding agreement with respect

thereto.” C.G. at 904. However, absent an enforceable contract, a same-sex

partner does not have custody rights to a child even though she lived with

child and former partner for five years. The question in this case then is

whether there was an enforceable contract in place that conferred parental

rights on Junior. We can find none.

None of documents involved in this case identify Junior as the legal

parent to Child. Junior was not a party to the Fairfax Cryobank sperm donation

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agreement that referred to Glover as the legal parent. Though both Glover

and Junior signed an agreement with RMA regarding IVF, Glover signed the

agreement as the “Patient” and Junior signed as her “Partner.” 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.

In the affidavits and retainer agreement each signed with the Jerner

Law Group, there was no requirement that Junior be listed on Child’s birth

certificate and no waiver of the adoption process. To the contrary, those

affidavits and retainer agreement demonstrate that the parties intended that

a formal adoption process was necessary before any legal parentage rights

could be conferred on Junior.4 Because Junior has no legal rights concerning

4 The dissent posits that this is the perfect opportunity for our Supreme Court to adopt “intent-based parentage” to determine whether the parties had entered into a contract affording legal parentage. Even though it acknowledges that our Supreme Court has not adopted an “intent-based parentage,” the dissent apparently adopts that approach by focusing on the purported emotional roles played by the parties during their relationship, as represented by Junior, rather than on the meaning of the words contained in the documents to see if there was an agreement regarding parentage. Although they could have easily chosen to include in the affidavits or other document a requirement that Junior be listed on Child’s birth certificate without the need for an adoption process (as Mother and Father did in In re Baby S.), the parties contemplated that conferring legal parentage to Junior would be through adoption only.

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Child in the absence of adoption as contemplated by the parties, we reverse

the order of the trial court in its entirety.5

Order reversed. Jurisdiction relinquished.

Judge King joins the memorandum.

Judge Bowes files a dissenting memorandum.

5 Based on our disposition, we need not reach Glover’s remaining two claims pertaining to subject matter jurisdiction and ripeness. We briefly note with regard to jurisdiction, our agreement with the trial court that given the unique circumstances of Child’s conception and birth, coupled with the significance of the issue of parentage to all involved, the trial court acted within the broad scope of its authority pursuant to the Divorce Code to rule on Junior’s petition to protect her potential interests. See 23 Pa.C.S. § 3104(a)(5) (providing trial court in divorce action with broad jurisdiction to rule on “any other matters pertaining to the marriage and divorce . . . and which fairly and expeditiously may be determined and disposed of in such action.”); see also 23 Pa.C.S. § 3323(f) (catch-all provision granting trial court in matrimonial cases full equity and jurisdiction to issue orders necessary to protect interests of parties).

We also agree with the trial court that the issue of parentage was ripe for review just three weeks prior to Child’s birth, and that this Court in In re Baby S., recognized a pre-birth cause of action in contract law. (See Trial Ct. Op., at 11-12); see also Del Ciotto v. Pennsylvania Hosp. of the Univ. of Penn Health Sys., 177 A.3d 335, 358 (Pa. Super. 2017) (explaining that the ripeness doctrine is premised on policy that courts should avoid premature adjudication of issues so as not to not give answers to academic questions, render advisory opinions or make decisions based on assertions as to hypothetical events).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/2023

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