A few years ago, I wrote a blog post about the ever-changing concept of “family,” and the expansion of the networks of caretakers intimately involved in children’s lives and forming parental bonds with children. Over the past year, this concept has been turned on its head by a recent case out of Philadelphia County, which is still on appeal in the Superior Court. The outcome has the potential to significantly change the landscape of parentage in Pennsylvania.
Glover v. Junior [cite] involved a same-sex couple who conceived a child through in vitro fertilization during their marriage. Ms. Glover carried the child, while Ms. Junior participated, attended doctor’s appointments, and signed contracts with the reproductive clinic and the doula. During the pregnancy, the parties began the process to confirm Ms. Junior’s parentage through a second-parent adoption after the baby’s birth, and each signed contracts confirming that they intended Ms. Junior to be a legal parent to the baby. However, prior to the child’s birth, the parties experienced marital difficulties, and Ms. Glover filed a Complaint in Divorce. Thereafter, Ms. Glover cut Ms. Junior off from doctor’s appointments, canceled a jointly planned baby shower, and informed Ms. Junior that she would no longer consent to the second-parent adoption.
Ms. Junior immediately filed an Emergency Petition for Pre-Birth Establishment of Parentage under the divorce action and, following an evidentiary hearing, an order was entered confirming Ms. Junior as the legal parent, as well as requiring Ms. Glover to advise Ms. Junior of the child’s birth and to provide Ms. Junior access to the baby after birth. Ms. Glover appealed, and a flurry of litigation followed, including motions to stay the lower court’s order pending the appeal.
On February 24, 2023, the Superior Court reversed the lower court’s order, finding that there was no enforceable contract in place between the parties sufficient to confer parental rights on Ms. Junior and that the parties’ initiation of the adoption procedures indicated that they knew Ms. Junior did not have rights and would need to adopt.
Ms. Junior then requested a reargument before an en banc panel of the Superior Court, whose argument took place in August 2023, and a final decision has not yet come down. The Superior Court’s first opinion sent shock waves through the family law bar, as it indicated a seismic shift from the prior trajectory of the law on parentage, especially parentage for same-sex couples. Imagine the same scenario for a heterosexual couple – husband and wife undergo in vitro fertilization (whether with the husband’s sperm or a sperm donor), the wife becomes pregnant, and the parties divorce before the baby is born. There would be no need for an adoption proceeding, and it would be extremely unlikely that any court would question the husband’s rights, and attendant obligations, as the baby’s father.
The court has long recognized the changing family structures and, both through case law and legislation, the legally recognized forms of parentage have steadily expanded. While members of the legislature work to craft more inclusive laws to address the myriad ways families are constructed and formed, cases like Glover seem to shift the definition toward stricter interpretations.
At the end of the day, the court has an interest in ensuring that children are well cared for and that their best interests are being met. As society changes and family structures become less traditional, it is our hope that the courts and the legislature will work to incorporate those changes into the law, making sure that all third parties who take on the role of parent have the ability to maintain that role for the best interest of the children. Whether a parent takes on that role through traditional means, artificial reproductive technology, adoption, or simply by being there to support and raise a child that is not biologically their own, both the parents and children deserve to have a legal system that protects and encourages the familial structures and bonds, no matter how such bonds were formed. We will all await the Superior Court’s decision on the reargument of Glover, as well as potential changes in legislation to guide the ever-changing landscape of families in Pennsylvania.