Glover v. Junior
| Decision Date | 24 February 2023 |
| Docket Number | 1369 EDA 2022 |
| Parties | CHANEL GLOVER Appellant v. NICOLE JUNIOR |
| Court | Pennsylvania Superior Court |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 4, 2022 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s) D22048480.
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.[*]
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.
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: (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" 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:
(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).
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 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 established Pennsylvania caselaw and not on any other legal doctrine. (See id. at 13).
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).
A.
Parentage of a child is typically established "through a formal adoption pursuant to the Adoption Act[3], or when two persons contribute sperm and 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 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...
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