Family Law

Another Court Sends Shock Waves By Denying Parental Rights To Lesbian Mom

Prominent Pennsylvania family law attorney Helen Casale characterized the ruling as a total travesty.

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family court divorce matrimonial law photo by David Lat

Family court (by David Lat).

On February 24, 2023, the Superior Court of Pennsylvania issued a ruling that should be highly troubling to LGBTQ+ parents everywhere. In the case, the court denied parental rights to Nicole Junior, who was not genetically related to a child carried by her wife, C. Glover. Glover conceived through the use of a sperm donor. For more details on the factual background of the case, check out this excellent article in Mombian.

In short, Glover and Junior were a legally married Pennsylvania couple who planned and conceived a child together. The steps for this included pretty much everything you could do with a spouse to demonstrate intent to conceive a child together when one is unable to be genetically related to the child. They:

  • were married;
  • jointly purchased sperm together from a sperm bank (the agreement with the cryobank listed Glover as the “Intended Parent” and Junior as the “Co-Intended Parent”);
  • jointly signed an agreement with the fertility clinic (Glover signed as “Patient” and Junior signed as “Partner”);
  • jointly went through the in vitro fertilization (IVF) process, with Junior injecting Glover with fertility drugs on a daily basis;
  • jointly consulted an attorney about Junior completing an adoption process for the child after birth; and
  • each signed affidavits with the attorney indicating that the other was intended to be a parent of the child.

That seems pretty thorough. But for the Pennsylvania Superior Court, it just wasn’t enough.

Mid-pregnancy, the couple experienced marital issues. Glover filed for divorce. Junior filed an emergency petition to establish parentage to the couple’s child. On May 3, 2022, the trial court entered a ruling supporting Junior’s petition, finding her a legal parent of the child. That might have been the end of it. But instead, Glover appealed.

That brings us to last month’s Superior Court ruling on Glover’s appeal. The court summed up Pennsylvania law on the point, “Commonwealth permits assumption … of legal parental status, under the narrow circumstances of using assisted reproductive technology, and forming a binding agreement with respect thereto.” The majority then held that the parties did not, however, have an enforceable contract and therefore, Junior was not a parent. The dissent, by contrast, found clear evidence of an enforceable contract between the parties.

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A Shocking Outcome. I spoke with prominent Pennsylvania family law attorney Helen Casale to understand just how seismic this ruling is. Casale characterized the ruling as a total travesty. She explained how attorneys like her, with an understanding of Pennsylvania family law, were absolutely shocked by the court’s decision and, specifically, the inequitable treatment of a nonbiological parent.

Casale contrasted the facts of the Glover-Junior case with what likely would have occurred with a heterosexual couple. In the latter case, men who impregnate their spouses but then file for divorce before the birth will invariably maintain parental rights and duties. It would be exceedingly unlikely for either spouse in such a case to successfully assert that the husband had no financial or other responsibility to the child.

Genetic Discrimination Or LGBTQ+ Discrimination? OK. Now suppose that man had a medical issue that precluded the use of his sperm and the couple turned to the use of a sperm donor. Casale explains that presumably, under the Glover ruling, that lack of genetic connection, could mean he would now be denied parental rights absent an adoption; by the same token, the wife might be denied child support. But that just isn’t how these cases end up.

Hope For Reversal. Junior has requested an en banc review of the ruling. Here, that’s when nine of the judges of the court may sit to rehear a case decided by a smaller panel of judges. Casale, while unsure if the court would be inclined to review en banc, believes the case fit for consideration by the Pennsylvania Supreme Court. Casale described the dissent as a blueprint for the Supreme Court to accurately recognize the many ways that Pennsylvania families are formed with the help of egg, sperm, and embryo donors.

How At Risk Are Families? While there is hope that Pennsylvania will reconsider this ruling and get to the right place eventually, this is not an isolated incident. Over the past couple years, there has been bad case after bad case — including those in Oklahoma, Idaho, and New Mexico — with judges ruling that a nongenetic intended parent has no rights to the child conceived with their spouse during their marriage. In turn, lawyers are advising nongenetic parents to adopt their own children — despite being presumed a parent under state law, or being named on the birth certificate.

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But, of course, adoptions cannot be commenced until after the birth of a child. Does this new ruling mean parents need to file for a prebirth parentage order (like those often obtained in a surrogacy arrangement) and then also adopt their own children after birth? The consequences of that outcome would be wholly unjust to LGBTQ+ individuals who go through assisted reproductive technology. Let’s hope the Pennsylvania courts — as well as this disturbing trend — reverse course soon.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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