Glover, C. v. Junior, N. ( 2023 )

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2023 PA Super 261CHANEL 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: PANELLA, P.J., BOWES, J., OLSON, J., DUBOW, J., KUNSELMAN,
J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
OPINION BY BOWES, J.: FILED DECEMBER 11, 2023
Chanel Glover appeals from the domestic relations court order granting
Nicole Junior’s petition for pre-birth establishment of parentage of the child
that the married couple conceived through in vitro fertilization (“IVF”)
treatment during their marriage.1 Glover challenges the trial court’s finding
that her spouse had a contract-based right to parentage. For the following
reasons, we affirm.
Junior and Glover met during 2019 and married in January 2021 while
living in California. Even prior to the marriage, the couple discussed starting
a family through IVF. In February 2021, the couple entered into an agreement
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1 Considering the reality that the non-delivering parent is not always male, as
evidenced by this appeal, we refer to the determination of parentage, as
opposed to paternity, throughout this opinion.
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with Fairfax Cryobank for donated sperm. Glover is listed as the “Intended
Parent” and Junior the “co-intended Parent.” See Fairfax Cryobank Contract,
2/3/21, at 1, 5. In accordance with the Fairfax Cryobank contract, the couple
collectively selected a sperm donor from Fairfax Cryobank based specifically
on the donor’s physical appearance, interests, and area of origin.
The couple moved to Pennsylvania in April of 2021, and in July 2021,
Junior and Glover signed an IVF agreement with Reproductive Medicine
Associates (“RMA”). Glover signed the agreement as the “Patient” and Junior
executed it as the “Partner.” See RMA Agreement, 7/11/21, at 9. Using
Glover’s eggs and the sperm from Fairfax Cryobank, the couple conceived a
son in August 2021, with a due date of May 18, 2022. The couple mutually
decided on a name for the child, hired a doula, and retained the Jerner Law
Group, P.C., in anticipation of Junior’s “Confirmatory Step-Parent Adoption” of
their son. See Engagement Letter, 10/13/21 at 1; N.T., 5/3/22, at Exhibits J,
M, and V. The doula contract identified both parties as “Client.” N.T., 5/3/22,
Exhibit M at unnumbered 6. Likewise, both women signed the attorney’s
engagement letter agreeing to the joint representation and the terms of
payment. See Engagement Letter, 10/13/21; N.T., 5/3/22, Exhibit J at
unnumbered 7-9. Thereafter, on December 5, 2021, the parties each signed
affidavits memorializing their intent to have Junior adopt their son, co-parent
with equal rights to Glover, and assume financial obligations if the couple
should separate. See N.T., 5/3/22, at Exhibit K.
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Over the ensuing four months, the couple’s relationship deteriorated.
Junior announced an intent to move from the marital residence when the lease
expired. Glover stopped communicating with Junior about the obstetrics
appointments and canceled mutually-scheduled events such as the baby
shower. In March 2022, Glover informed her spouse that she no longer
intended to proceed with the adoption, and on April 18, 2022, Glover filed a
divorce complaint.
Two weeks later, Junior filed at the domestic relations docket assigned
to the divorce proceedings the petitions for pre-birth establishment of
parentage that are the genesis of the matter at issue in this appeal.2 Following
Glover’s responses and an evidentiary hearing, the trial court found that Junior
had a contractual right to parentage and granted the petitions as follows:
It is hereby ordered and decreed that: (1) Nicole S. Junior is
confirmed as the legal parent of the child conceived during her
marriage to Chanel E. Glover via [IVF] and due to be born in May
of 2022; (2) Glover shall advise Junior when she goes into labor;
(3) Both Glover and Junior shall have access to the child after birth
consistent with Glover’s medical privacy rights and the hospital’s
policies regarding newborn children. However, this paragraph
shall not in any way be construed as a custody order; ([4]) Glover
shall execute the Commonwealth of Pennsylvania’s Birthing
Parent’s worksheet indicating that Nicole S. Junior is the child’s
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2 Specifically, Junior simultaneously filed a petition for pre-birth establishment
of parentage and an emergency petition for pre-birth establishment of
parentage. The petitions are nearly identical, and as noted on the face of the
May 4, 2022 order, the trial court disposed of both petitions therein. See Trial
Court Order, 5/4/22, at 2 (“[T]he petition for special relief, each filed on April
27, 2022 seek the same relief. This order resolves both petitions and no
further hearing on either petition is necessary.”).
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other parent; and ([5]) the name of Nicole S. Junior shall appear
on the child’s birth certificate as a second parent.
When appropriate, a custody complaint may be filed under a
custody case number.
Order, 5/4/22, at 1 (cleaned up).
Glover filed a timely appeal and both she and the trial court complied
with Pa.R.A.P. 1925.3 She presents three questions, which we re-order for
ease of review:
1. Did the trial court err as a matter of law when it found that
[Glover] waived any challenges to the [c]ourt’s exercise of its
jurisdiction and to its being a proper forum for a decision regarding
[Junior’s] rights as a legal parent[?]
2. Did the trial court err when it found that the issue of parentage
was ripe for determination[?]
3. Did the trial court act within its discretion and err as a matter
of law when it confirmed pre-birth legal parentage of [Junior?]
Glover’s brief at 5.
Glover first challenges the trial court’s jurisdiction to address the petition
for pre-birth establishment of parentage. The crux of this contention is that,
while the trial court had original jurisdiction over the divorce proceedings and
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3 Glover filed an emergency application for a stay and attached documentation
demonstrating that following the May 25, 2022 birth of the child, Junior
initiated custody proceedings. On June 14, 2022, this Court temporarily
stayed all aspects of the May 4, 2022 order until July 18, 2022, when it entered
a subsequent order staying only the portion of the May 4, 2022 order that
directed, “the name of Nichole S. Junior shall appear on the child’s birth
certificate as a second parent.” Superior Court Order, 7/18/22. The status of
the custody litigation is unknown, but during the oral argument before this
Court en banc, counsel represented that Junior has not had any contact with
the child.
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any ancillary claims for relief, the court lacked subject matter jurisdiction over
Junior’s petition because Glover did not plead custody or parentage in the
divorce complaint. See Glover’s brief at 43 (“[The] trial court did not have
the authority, in the divorce forum, or any forum, to entertain an action for
pre-birth establishment of parentage, especially as an emergency matter.”).
Junior counters that the trial court had the authority to consider Junior’s
petition pursuant to the Pennsylvania Divorce Code (“the Code”), which Junior
contends “confers full equity powers to the family court[.]” Junior’s brief at
46. Relying on the Code’s preliminary provisions in §§ 3102, 3104, and 3105,
concerning the legislative findings and intent, bases of jurisdiction, and effect
of agreements between parties, respectively, Junior maintains that the trial
court acted within its statutory authority over matters ancillary to the divorce
in exercising jurisdiction over the petition to determine parentage. Junior
continues that § 3323(f), governing “[e]quity powers and jurisdiction of the
court,” is effectively a catch-all provision that provides the court authority to
grant equitable relief over matters that arise under the Code. Junior’s brief at
46.
In rejecting Glover’s challenge to its exercise of authority over the
petition to determine parentage, the trial court first concluded that the
jurisdictional issue was waived pursuant to P.A.R.A.P. 302(a) because Glover
neglected to challenge it during the hearing. However, potentially recognizing
that challenges to subject matter jurisdiction are non-waivable, the court
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provided an alternative statutory basis for its authority under § 3323(f) of the
Code. For the reasons that follow, we find that the trial court acted within its
broad authority imbued under §§ 3104 and 3323(f) of the Code.
At the outset, we observe that Glover’s arguments conflate the
principles of jurisdiction and authority. Quoting Riedel v. Human Relations
Comm’n, 739 A.2d 121, 124 (Pa. 1999), our Supreme Court has reiterated
the relevant distinction as follows:
Jurisdiction and power are not interchangeable although judges
and lawyers often confuse them[.] Jurisdiction relates solely to
the competency of the particular court or administrative body to
determine controversies of the general class to which the case
then presented for its consideration belongs. Power, on the other
hand, means the ability of a decision-making body to order or
effect a certain result.
Domus, Inc. v. Signature Bldg. Sys. of PA, LLC, 252 A.3d 628, 636 (Pa.
2021) (holding procedural failure divested the trial court of “authority to order
relief in the particular case before it” but did not divest the court of subject
matter jurisdiction “to consider the general class of” the type of action at
issue).
Phrased differently, subject matter jurisdiction concerns the court’s
authority to consider cases of a given nature and grant the type of relief
requested. Harley v. HealthSpark Foundation, 265 A.3d 674 (Pa.Super.
2021). It “is defined as the power of the court to hear cases of the class to
which the case before the court belongs, that is, to enter into inquiry, whether
or not the court may ultimately grant the relief requested.” Id. at 687.
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A challenge to a court’s subject matter jurisdiction raises a question of
law, which we review de novo. Id. Our scope of review is plenary. Id.
The various divisions of Pennsylvania’s “Courts of Common Pleas have
unlimited original jurisdiction over all proceedings in this Commonwealth,
unless otherwise provided by law.” Beneficial Consumer Discount Co. v.
Vukman, 77 A.3d 547, 552 (Pa. 2013); see also 42 Pa.C.S. § 931(a)(“Except
where exclusive original jurisdiction of an action or proceeding is by statute
. . . vested in another court of this Commonwealth, the courts of common
pleas shall have unlimited original jurisdiction of all actions and proceedings,
including all actions and proceedings heretofore cognizable by law or usage in
the courts of common pleas.”). It is beyond cavil that the Courts of Common
Pleas are competent to entertain parentage claims. See e.g., S.M.C. v.
C.A.W., 221 A.3d 1214 (Pa.Super. 2019) (affirming parentage determination
by the court of common pleas based upon application of the doctrine of
paternity by estoppel); DeRosa v. Gordon, 286 A.3d 321, 331 (Pa.Super.
2022) (affirming court of common plea’s parentage orders granting DNA
testing); V.L.-P. v. S.R.D., 288 A.3d 502 (Pa.Super. 2023) (vacating portion
of court of common pleas order denying genetic testing and remanding for
further proceedings concerning genetic testing and claims of fraud); see also
23 Pa.C.S. §§ 4343 (providing procedures for court of common pleas to
determine parentage of child born out of wedlock) and 5102-5104 (concerning
determination of parentage, acknowledgment and claim of parentage, and
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blood tests to determine parentage). Accordingly, Glover’s jurisdictional
challenge fails.
Moreover, to the extent that Glover contests the trial court’s statutory
authority to grant the pre-birth establishment of parentage under the
purview of the Code, this non-jurisdictional challenge is, in fact, waived
pursuant to Pa.R.A.P 302(a) because Glover failed to raise it during the
evidentiary hearing. See Stange v. Janssen Pharm., Inc., 179 A.3d 45, 63
(Pa.Super. 2018) (explaining, “Even if an issue was included in a subsequently
filed motion for reconsideration, issues raised in motions for reconsideration
are beyond the jurisdiction of this Court and thus may not be considered by
this Court on appeal.”) (cleaned up). Furthermore, as discussed infra, even if
Glover had raised and preserved a challenge to the trial court’s statutory
authority, that claim would find no purchase here.
In pertinent part, the Code outlines the court’s jurisdiction as such:
(a) Jurisdiction.--The courts shall have original jurisdiction in
cases of divorce and for the annulment of void or voidable
marriages and shall determine, in conjunction with any decree
granting a divorce or annulment, the following matters, if raised
in the pleadings, and issue appropriate decrees or orders with
reference thereto, and may retain continuing jurisdiction thereof:
....
(5) Any other matters pertaining to the marriage and
divorce or annulment authorized by law and which fairly and
expeditiously may be determined and disposed of in such action.
23 Pa.C.S. § 3104.
Similarly, the Code grants the court the following equitable powers:
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(f) Equity power and jurisdiction of the court.--In all
matrimonial causes, the court shall have full equity power and
jurisdiction and may issue injunctions or other orders which are
necessary to protect the interests of the parties or to effectuate
the purposes of this part and may grant such other relief or
remedy as equity and justice require against either party or
against any third person over whom the court has jurisdiction and
who is involved in or concerned with the disposition of the cause.
23 Pa.C.S. § 3323.4
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4 Our legislature outlined the purpose of the Code as follows:
(a) Policy.--The family is the basic unit in society and the
protection and preservation of the family is of paramount public
concern. Therefore, it is the policy of the Commonwealth to:
(1) Make the law for legal dissolution of marriage effective for
dealing with the realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of
differences between spouses, especially where children are
involved.
(3) Give primary consideration to the welfare of the family
rather than the vindication of private rights or the punishment
of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused
by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration
and cooperate with and utilize the resources available to deal
with family problems.
(6) Effectuate economic justice between parties who are
divorced or separated and grant or withhold alimony according
to the actual need and ability to pay of the parties and insure a
fair and just determination and settlement of their property
rights.
(Footnote Continued Next Page)
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Instantly, it is indisputable that, with all matters filed pursuant to the
Code, the court of common pleas had authority according to 23 Pa.C.S. § 3104
to confront Junior’s petitions, rule on the merits of the matters at hand, and
grant the requested relief. In addition, to the extent that Glover’s challenge
is founded upon the fact that her divorce complaint did not specifically plead
custody or parentage, as she argues is required to trigger § 3104(a),
generally, her argument is unavailing. Regardless of the putative
prerequisites Glover seeks to invoke to preclude the court from exercising its
authority under § 3104, in light of the circumstances of this case and the
significance of the parentage issue to both parties, the trial court acted
squarely within the equitable powers conferred by the § 3323(f) catchall
provision granting courts in matrimonial cases full equity and jurisdiction to
protect the interests of the parties.5 Thus, this authority-based challenge also
fails.
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(b) Construction of part.--The objectives set forth in subsection
(a) shall be considered in construing provisions of this part and
shall be regarded as expressing the legislative intent.
23 Pa.C.S. § 3102.
5 Similarly, we reject Glover’s justiciability challenge based on the ripeness
doctrine. Framing the matter as implicating custody and/or parentage of a
then-unborn child, as opposed to contractual rights, she contends that the
issues were not ripe when the trial court addressed Junior’s petition for relief.
We disagree. As the trial court accurately observed in rejecting this contention
below, this Court “recognized a pre-birth cause of action [for parentage based]
in contract law in In Re Baby S., 128 A.3d 296 (Pa.Super 2015)[.]” Trial
Court Opinion, 8/1/22, at 12.
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Accordingly, we turn to the substance of this appeal, observing at the
outset that we review orders relating to parentage for an abuse of discretion
or an error of law. See, e.g., J.L. v. A.L., 205 A.3d 347, 353 (Pa.Super.
2019). The crux of Glover’s argument is that the trial court erred in applying
contract principles to determine parentage. Essentially, she claims that
Pennsylvania jurisprudence “established a narrow framework for establishing
parentage in the absence of adoption or biology[,]” and the trial court
summarily concluded, “without legal or factual support, that [Junior] is a legal
parent . . . under contract principles.” See Glover’s brief at 23-24.
Mindful of our authority to affirm a trial court on any basis supported by
the record, we first examine whether the order establishing Junior’s parentage
is sustainable through “application of the presumption of parentage married
persons enjoy,” which we refer to herein as the marital presumption.6 C.G.
v. J.H., 193 A.3d 891, 905 n.12 (Pa. 2018). Pursuant to that doctrine,
“generally, a child conceived or born during the marriage is presumed to be
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6 The trial court specifically declined to apply the doctrine in this case.See
Trial Court Opinion, 8/1/22 at 13 (“Here, the [c]ourt did not apply [the
presumption] in reaching its determination that Junior is the legal parent of
Child. Rather, the Court appropriately applied the law of contracts and
established Pennsylvania case law to determine that the parties’ actions
evidenced the intent and the accomplishment of securing Junior’s status as a
legal parent.”). Nevertheless, it is axiomatic that this Court can affirm the
trial court order for any reason supported by the certified record. See D.M. v.
V.B., 87 A.3d 323, 330 n.1 (Pa.Super. 2014). Therefore, because Junior and
the amicus curiae both advocate this well-settled doctrine as a basis for
affirmance, we consider it at the outset.
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the child of the marriage; this presumption is one of the strongest
presumptions of the law of Pennsylvania[.]” Brinkley v. King, 701 A.2d 176(Pa. 1997) (plurality). Indeed, as our Supreme Court explained, “in one
particular situation, no amount of evidence can overcome the presumption:
where the family (mother, child, and [spouse]) remains intact at the time that
the [spouse’s parentage] is challenged, the presumption is irrebuttable.”
Strauser v. Stahr, 726 A.2d 1052, 1054 (Pa. 1999).
The presumption is equally applicable to same-sex and opposite-sex
spouses. See Interest of A.M., 223 A.3d 691, 695 (Pa.Super. 2019).
However, for both types of spouses, since the purpose of the marital
presumption is to preserve the inviolability of the intact marriage, “[w]hen
there is no longer an intact family or a marriage to preserve, then the
presumption . . . is not applicable.” Vargo v. Schwartz, 940 A.2d 459, 463
(Pa.Super. 2007); K.E.M. v. P.C.S., 38 A.3d 798, 806-07 (Pa. 2012) (“As to
the [marital presumption], we note only that recent Pennsylvania decisions
have relegated it to a substantially more limited role, by narrowing its
application to situations in which the underlying policies will be advanced
(centrally, where there is an intact marriage to be protected).”)
As it relates to the determination of what constitutes an intact family for
the purposes of the doctrine’s applicability, our High Court has held that the
presumption does not apply where the parties had finalized the divorce prior
to the parentage dispute. See Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999)
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(adopting the plurality’s reasoning in Brinkley, supra; “In this case, there is
no longer an intact family or a marriage to preserve. Appellant and her
husband have been divorced since December of 1993.”). Likewise, this Court
found that a long-term separation without a finalized divorce would foreclose
the doctrine’s application. See e.g., J.L., supra at 357 (finding that the
record supports trial court’s conclusion that marital presumption did not apply
where couple represented that they were separated, rented a separate
apartment, and considered divorce); Vargo, supra at 463 (collecting cases
where appellate courts concluded presumption did not apply because
marriages were not intact despite the lack of final divorce decree); T.L.F. v.
D.W.T., 796 A.2d 358, 362 at n.5 (Pa.Super. 2002) (“We specifically note
that the fact Appellee and D.F. are not divorced is not determinative in this
case. We have also held that the presumption is inapplicable where the parties
were separated but not divorced.”).
Conversely, in Interest of A.M., supra at 695, we concluded that the
trial court did not err in applying the presumption to a marriage that had been
beset by domestic violence because, although the parties previously
contemplated separation, they intended to remain married when the issue of
parentage was raised. We explained,
It is readily apparent from the record that the marriage
between P.M.-T. and Mother is riddled with challenges and
difficulties. Under our case law, though, the existence of troubles
in a marriage – even one as serious and disturbing as domestic
violence - does not mean that such a marriage is not intact for
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purposes of determining the applicability of the [marital]
presumption[.]
Id. at 695-96. The High Court reached a similar conclusion in Strauser,
supra at 1055–56, holding that the presumption applied where the couple
remained committed to the marriage despite infidelity. See also E.W. v. T.S.,
916 A.2d 1197, 1204 (Pa.Super. 2007) (same); B.C. v. C.P., 300 A.3d 321(Pa. 2023) (granting allowance of appeal to determine “whether the lower
courts erred in placing paramount importance on periods of separation in
determining that the presumption of paternity was inapplicable, despite the
marital couple’s reconciliation which predated the third-party's paternity
action.”).
In this case, Glover and Junior had been married for approximately
seven months when the child was conceived, but they separated prior to birth.
The trial court observed that the couple “experienced marital difficulties and
sought counseling.” Trial Court Opinion, 8/1/22, at 3. It also noted that
Glover “described Junior as having ‘immense emotional needs,’ ‘a lot of
triggers’ and as ‘volatile,’ ‘toxic, ‘controlling,’ and manipulative.” Id. (citing
N.T., 5/3/22, at 59, 65)) (cleaned up). Junior “intended to move out of the
residence when the. . . lease expired on July 31, 2022.” Id. at 4 (citing N.T.
5/3/22, at 38-39). Glover initiated divorce proceedings before Junior filed the
petitions to determine pre-birth parentage that underlie this appeal, and the
divorce remained pending when the trial court determined that Junior had a
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contract-based right to parentage. The certified record does not reveal the
present status of the marriage.
Applying these facts to the above-stated paradigm, it is apparent that
employing the marital presumption would not serve the purpose of the
doctrine, i.e., to preserve an intact marriage. We recognize that the onset of
the divorce proceedings is not determinative of this issue where, as here, the
marriage had not yet been dissolved when parentage was placed at issue.
Nevertheless, the filing of a divorce complaint is particularly relevant
considering the trial court’s factual findings concerning the parties’ marital
strife and intra-residence separation, and Junior’s aim to move out of the
residence two months after the child’s anticipated due date.
While this Court determined in Interest of A.M. that elevated marital
discord did not require ipso facto a finding that the marriage was not intact
for the purposes of determining the marital presumption’s applicability,
overall, the facts of the case at bar align with the cases finding that the various
marriages were no longer intact. See e.g., J.L., supra at 357-58 (affirming
trial court decision to forgo marital presumption); Barr v. Bartolo, 927 A.2d
635, 643 (Pa.Super. 2007) (“[W]hile the parties remain married, there
concededly is no intact family to preserve; hence, the [marital] presumption
. . . is not applicable.”); Doran v. Doran, 820 A.2d 1279, 1283 (Pa.Super.
2003) (“Because a divorce action was pending . . ., there was no longer an
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intact family or marriage to preserve, and, therefore, the [marital]
presumption . . . is inapplicable to the present case.”).
Stated plainly, unlike the facts underlying the cases upholding the
doctrine’s application based upon the spouses’ commitment to their nuptials
notwithstanding marriage-related turmoil, the instant case lacks this
galvanizing element. As recounted by the trial court’s factual findings, the
certified record demonstrates that the marriage was over at the time
parentage was placed at issue. Hence, we find that the trial court did not
abuse its discretion in failing to apply the marital presumption in this case.
Turning to the legal basis for the trial court’s decision to confirm Junior’s
status as the child’s legal parent, the trial court determined that the parties
formed a binding agreement that imbued Junior with parental rights. See
Trial Court Opinion, 8/1/22 at 9-10 (“Based upon the undisputed evidence
presented, the [c]ourt determined that it conclusively established that the
parties, a married couple, formed a binding agreement for Junior, as a non-
biologically[-]related intended parent, to assume the status of legal parent to
the [c]hild [conceived] through the use of assistive reproductive technology
[(‘ART’)].”). We next address Glover’s arguments assailing that conclusion.
Whether individuals can enter into an enforceable agreement to
determine parentage and parental rights involves a legal question that we
review de novo. Ferguson v. McKiernan, 940 A.2d 1236 1242 (Pa. 2007)
(holding that appellate courts employ de novo review of pure question of law
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concerning whether would-be mother and willing sperm donor can enter into
an enforceable agreement to delineate parental rights and obligations). Our
scope of review is plenary. Id.As this Court recognized in Reformed Church of the Ascension v.
Hooven & Sons, Inc., 764 A.2d 1106, 1109 (Pa.Super. 2000), “[t]he policy
behind contract law is to protect the parties’ expectation interests by putting
the aggrieved party in as good a position as he would have been had the
contract been performed.” (citing Restatement (Second) of Contracts
§ 344(a) (1979) (approved in Trosky v. Civil Service Commission, 652
A.2d 813, 817 (Pa. 1995)). Whether oral or written, a contract requires three
essential elements: (1) mutual assent; (2) consideration; and (3) sufficiently
definite terms. See e.g., Helpin v. Trustees of Univ. of Pennsylvania,
969 A.2d 601, 610 (Pa.Super. 2009).
Furthermore,
[a]n agreement is expressed with sufficient clarity if the parties
intended to make a contract and there is a reasonably certain
basis upon which a court can provide an appropriate remedy.
Accordingly, not every term of a contract must always be stated
in complete detail. If the parties have agreed on the essential
terms, the contract is enforc[ea]ble even though recorded only in
an informal memorandum that requires future approval or
negotiation of incidental terms. In the event that an essential
term is not clearly expressed in their writing but the parties’ intent
concerning that term is otherwise apparent, the court may infer
the parties’ intent from other evidence and impose a term
consistent with it.
Id. at 610-11 (cleaned up) (quotations and citations omitted).
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As to our consideration of contract terms when a written agreement is
involved, “[t]his Court must construe the contract only as written and may
not modify the plain meaning under the guise of interpretation. Humberston
v. Chevron U.S.A., Inc., 75 A.3d 504, 509–10 (Pa.Super. 2013) (internal
quotation marks and citations omitted). Likewise, “[w]here several
instruments are made as part of one transaction they will be read together,
and each will be construed with reference to the other; and this is so although
the instruments may have been executed at different times and do not in
terms refer to each other.” Sw. Energy Prod. Co. v. Forest Res., LLC, 83
A.3d 177, 187 (Pa.Super. 2013) (quoting Huegel v. Mifflin Const. Co., Inc.,
796 A.2d 350, 354–355 (Pa.Super. 2002)).
Herein, the trial court concluded that Junior was a legal parent based
upon principles of contract law. Glover urges us to reach the opposite position
by attempting to distinguish the facts of the instant case from the
circumstances involved in the three cases that the trial court relied upon in
fashioning Junior’s contractual rights to parentage: C.G. v. J.H., supra;
Ferguson, supra; and In Re Baby S., 128 A.3d 296 (Pa.Super 2015).
We address the relevant precedential authority chronologically. In
Ferguson, a prospective mother and a sperm donor entered into an oral
agreement pertaining to parentage. Specifically, the parties agreed that the
sperm donor would be released from parental obligations of the children
produced from the mother’s IVF treatment. In exchange, the mother agreed
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not to seek child support. However, she subsequently changed her mind and
sued the biological father for child support of the twins born of the accord and
IVF treatment. The trial court denied relief, holding that the agreement was
unenforceable as against public policy because a parent cannot bargain away
a child’s right to support. We affirmed, but our Supreme Court upheld the
oral contract observing that “constantly evolving science of reproductive
technology . . . undermines any suggestion that the agreement at issue
violates [public policy].” Ferguson, supra at 1248. Hence the High Court
held that the agreement was binding and enforceable against both biological
parents. Id. (“[I]n considering as we must the broader implications of issuing
a precedent of tremendous consequence to untold numbers of
Pennsylvanians, we can discern no tenable basis to uphold the trial court’s
support order.”).
Subsequently, in In re Baby S., this Court reviewed the enforceability
of a surrogacy agreement between a married couple and a gestational
surrogate. The couple entered into a service agreement for IVF treatment
that identified them as “Intended Parents” and matched them with a
gestational carrier. The couple entered a second contract with a gestational
carrier, also identifying them as the intended parents, that obligated them “to
accept custody and legal parentage of any Child born pursuant to this
Agreement.” In re Baby S., supra, at 300. In turn, the second contract
specified that “[t]he Gestational Carrier shall have no parental or custodial
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rights or obligations of any Child conceived pursuant to the terms of this
Agreement.” Id.
After the child was born, the couple experienced marital difficulties and
the wife sought to rescind the agreement, arguing that the gestational carrier
contract was unenforceable. Relying upon Ferguson, the trial court declared
the couple as the legal parents of Baby S. Id. at 301. The wife appealed,
and we upheld the trial court’s order confirming parentage, reasoning as
follows:
The Ferguson Court expressly recognized the enforceability
of a contract that addressed parental rights and obligations in the
context of [ART], which in that case involved sperm donation. The
Court acknowledged “the evolving role played by alternative
reproductive technologies in contemporary American society.”
The Court acknowledged “non-sexual clinical options for
conception ... are increasingly common in the modern
reproductive environment” and noted that the legislature had not
prohibited donor arrangements despite their “growing
pervasiveness.” The Court’s language and focus on the parties’
intent is at odds with Appellant’s position that gestational carrier
contracts, a common non-sexual clinical option for conceiving a
child, violate a dominant public policy based on a “virtual
unanimity of opinion.”
Id. at 306 (cleaned up).
Finally, in C.G., our Supreme Court confronted whether an unmarried,
former same-sex partner had standing as a “parent” pursuant to § 5324(1) of
the Child Custody Act, to seek custody of a child who was conceived via
intrauterine insemination using an anonymous sperm donor. C.G., who
shared no genetic connection with the child and never pursued adoption,
argued that she had standing because she acted as a mother to the then nine-
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year-old child, whom she argued was conceived with the mutual intent of both
parties to co-parent. C.G. also asserted that her continued involvement
served the child’s best interests.
J.H., the biological mother, filed preliminary objections to the custody
complaint wherein she argued that C.G. lacked standing because she was not
the child’s parent or grandparent and did not stand in loco parentis to the
child. Moreover, J.H. disputed that she conceived the child with the intent to
co-parent with C.G. and highlighted that she satisfied nearly all of the child’s
financial needs, served as the sole parent since birth, and “made all decisions
regarding the child's education, medical care, growth and development[.]”
C.G., supra, at 894 (quoting Prelim. Objections, 1/6/16, at ¶¶ 7-11.).
Following a three-day evidentiary hearing addressing “C.G.'s
participation in the conception, birth, and raising of [the c]hild, [and] the
intent of the parties with respect thereto,” the trial court sustained the
preliminary objections. Id. at 894-95. Specifically, as to the parties’ intent
to co-parent, the trial court found no shared intent to conceive and raise the
child collectively. Hence, the court was persuaded that C.G. was not a parent
and J.H. did not hold her out as one to others. Id. at 896.
C.G. appealed the order dismissing the custody complaint, and we
affirmed. The Supreme Court granted allowance of appeal to consider, inter
alia, whether the former same-sex partner had standing “to seek custody of
a child born during her relationship with the birth mother where the child was
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conceived via assisted reproduction and the parties lived together as a family
unit for the first five years of the child's life.” Id. at 897-98.
In affirming the court’s rejection of C.G.’s standing claim, the High Court
held that Pennsylvania jurisprudence limits recognition of legal parentage to
biology, adoption, judicial presumptions associated with intact marriages, and
“contract—where a child is born with the assistance of a donor who
relinquishes parental rights and/or a non-biologically related person assumes
legal parentage[.]” Id. at 904. As C.G. had no biological connection to the
child, had not officially adopted the child, and did not have rights that have
been recognized as affording legal parentage, the High Court concluded that
she was not a parent.7
Significantly, however, the Court continued:
[N]othing in today’s decision is intended to absolutely foreclose
the possibility of attaining recognition as a legal parent through
other means. However, under the facts before this Court, this
case does not present an opportunity for such recognition, as the
trial court found as fact that the parties did not mutually
intend to conceive and raise a child, and the parties did not
jointly participate in the process.
Id. at 904 n.11 (emphasis added).
____________________________________________
7 As the parties were unmarried and “declined to seek recognition of their
union by registering as domestic partners [or] . . . pursue adoption . . . while
the relationship was still intact[,]” the High Court did not speculate about
whether their informal commitment ceremony “should compel the application
of the presumption of parentage married persons enjoy.” C.G. v. J.H., 193
A.3d 891, 905 n.12 (Pa. 2018).
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Cognizant of the foregoing framework, we address Glover’s contention
that the trial court erred in concluding that Junior had a contract-based right
to parentage. For the following reasons, we affirm the court’s finding that
Junior established a contract-based right to parentage, as evidenced by the
couple’s collective intent and shared cost in conceiving a child via ART.
As previously noted, while parentage is typically established biologically
or through formal adoption, in cases involving ART, “contracts regarding the
parental status of the biological contributors must be honored in order to
prohibit restricting a person’s reproductive options.” C.G. supra at, 903-04
(cleaned up). Our High Court further instructed, “[t]here is nothing to suggest
in our case law that two partners in a same-sex couple could not similarly
identify themselves each as intended parents, notwithstanding the fact that
only one party would be biologically related to the child.” Id. at 904, n.11.
An examination of the documents and testimony presented during the
evidentiary hearing reveals a sufficient basis, as evidenced by the agreements
and the conduct of the parties, to confer parentage on Junior. First, insofar
as Junior was required to, and did, in fact, initial or sign as “partner” the
substantive pages of the couple’s IVF agreement with RMA Fertility, Junior
was a party to that contract. Indeed, the written accord expressly required
Junior to execute the contract and noted that “if during the term of this
Agreement there occurs a change in legal or other status (i.e., divorce, legal
separation or annulment) . . . you will be deemed to have self-withdrawn from
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the Program, and you will not be entitled to a refund.” RMA Fertility
Agreement, 7/11/21, at 6. Concomitantly, the joint agreement also directed
that by executing the contract, Junior assumed the financial obligation of
participating in the fertility program, a cost that the couple split equally. Thus,
rather than being the mere signatory that Glover suggests, Junior was an
essential party to the contract and subject to the obligations, constraints, and
liabilities outlined therein.
Similarly, although not a signatory to the agreement, Junior was a
beneficiary of the couple’s agreement with Fairfax Cryobank that identified
Junior as a “co-intended parent,” relinquished the rights of the sperm donor,
and conveyed parental rights to the child born of the donated sperm. This
agreement evinced the couple’s express intent that Junior would be bound by
the terms and conditions embodied therein.8
____________________________________________
8 The following considerations are relevant to our determination concerning
whether an individual is a third party beneficiary to a contract:
(1) the recognition of the beneficiary’s right must be appropriate
to effectuate the intention of the parties, and
(2) the performance must satisfy an obligation of the promisee to
pay money to the beneficiary or the circumstances indicate that
the promisee intends to give the beneficiary the benefit of the
promised performance.
Porter v. Toll Bros., Inc., 217 A.3d 337, 349 (Pa. Super. Ct. 2019) (quoting
Burks v. Fed. Ins. Co., 883 A.2d 1086, 1088 (Pa.Super. 2005). Instantly,
at the time of contract formation, the Fairfax Cryobank Contract designated
Junior a co-intended parent and the circumstances of the couple’s mutual
(Footnote Continued Next Page)
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In addition to the two assistive fertilization agreements that
demonstrated the couples’ shared agreement, Glover and Junior retained legal
counsel in anticipation of Junior’s “Confirmatory Step-Parent Adoption” of their
son. Engagement Letter, 10/13/21 at 1. Again, they shared the cost of
representation and the engagement letter contained an addendum regarding
joint representation that disclosed the risk inherent to collective
representation. Id. at Addendum—Consent Regarding Joint Representation.
Likewise, the couple jointly hired a doula, again splitting the fee, pursuant to
an agreement that identified both parties as “Client.” N.T., 5/3/22, Exhibit M
at unnumbered 6.
Overall, the foregoing contracts, all of which either referenced Junior as
a party or made her a beneficiary, served as evidence that Junior and Glover
intended to collectively assume legal parentage of the child born via artificial
reproductive technology. Phrased differently, the various agreements bear
out the reality that Junior would be the child’s second parent.
In addition to the parties’ mutual intent, which permeated the ART
agreements, the conduct of Glover and Junior further evinces the existence of
an oral contract between them. As noted supra, there are three elements of
a contract: (1) mutual assent; (2) consideration; and (3) sufficiently definite
____________________________________________
effort to procure sperm from a specifically-selected donor in anticipation of
the IVF procedure manifested Glover’s intent to bestow upon Junior the terms
and conditions of the agreement with Fairfax Cryobank.
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terms. Helpin, supra at 610. Presently, the certified record is replete with
evidence of the parties’ mutual assent to conceive a child of their marriage
using ART, bestow upon Junior legal parent status, and raise the child together
as co-parents. See Trial Court Opinion, 8/1/22, at 9-10. Additionally, as
discussed above, unlike the facts that the Supreme Court confronted in C.G.
supra, where “[t]here was no dispute that [the former same-sex partner] was
not party to a contract or identified as an intended-parent[,]” Junior satisfied
both these components. Id. at 904. The only remaining question is whether
the oral agreement was supported by consideration or some other form of
validation. For the reasons that follow, we find that it was.
In Pennsylvania Envtl. Def. Found. v. Commonwealth, 255 A.3d
289, 305 (Pa. 2021), our Supreme Court explained that “[c]onsideration is
defined as a benefit to the party promising, or a loss or detriment to the party
to whom the promise is made.” (citations omitted).
During the evidentiary hearing on Junior’s petition, Junior confirmed
paying for one-half of all the expenses, including fees associated with the
preliminary medical tests, IVF, and hiring a doula to assist Glover during the
birth. See N.T., 5/3/22, at 17, 44. When asked about the extent of the
equally shared costs, Junior declared, “Everything: the IVF, the doula, the
second parent adoption, everything. Everything.” Id. at 44 (emphasis in
original).
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Junior also described the shared emotional role, noting how, for three
months, Junior was required to administer daily fertility injections into Glover’s
abdomen in anticipation of having her eggs removed for fertilization. Id. at
18-19. After the pregnancy was confirmed, Junior administered daily dosages
of progesterone to help prevent miscarriages. Id. at 19. Additionally, Junior
regularly accompanied Glover to the obstetrician. Id. at 20. Junior
summarized their collective preparations as follows:
But every week, we would have to go to RMA for more
bloodwork just to make sure the progesterone levels were correct,
that everything was coming along [as planned], and also doing
sonograms.
And then, finally, we had completed [ART]. Like I said, I
gave the injections for over three months, but now we were able
to go directly to Thomas Jefferson [University Hospital], who we
decided together would be our OB. That’s where we would give
birth.
....
So, for a year, this was a constant -- for the entire year of 2021,
us bringing our child into the world was a constant in our lives.
Although . . . we weren’t pregnant before July, he was still
part of our family because we were doing everything we could
every week to make sure that we had him. And then once we
conceived, we were doing everything we could every day for the
. . . remainder of the year to make sure that he stayed with us
through these injections, through going to the hospital, making
sure he was okay, monitoring his heart, hearing his heartbeat, so
forth and so on.
I’m sorry I was long-winded, but really, it was a very long
process, and I was there for every step of it.
Id. at 21-20.
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Glover not only agreed to the shared financial and emotional burdens,
she continued to assent to the arrangement even after doubting whether she
was still committed to co-parenting with Junior. Id. at 59. Glover addressed
this apparent dichotomy during the evidentiary hearing. She offered the
following explanation for why, despite her apprehensions about continuing her
romantic relationship with Junior, she nevertheless executed the fertility
contracts identifying Junior as a co-parent rather than proceeding alone or
forgoing the IVF program entirely: “I could’ve moved forward without having
to do the [IVF] program. . . . Financially—it was the best decision.” Id. at
65. Hence, the certified record bears out that, in exchange for the
consideration of the shared emotional burden and equally-divided financial
cost of the assistive reproductive procedure and birth, Glover agreed that her
spouse, Junior, would possess parental rights to the child conceived through
their combined efforts.
In light of the express contractual obligations outlined between the
parties in the Fairfax Cryobank Contract that identified Junior as the “co-
intended Parent” and the couple’s IVF agreement with RMA Fertility, which
Junior executed as the “Partner,” as well as all of the joint steps taken by the
parties to prepare for the birth of the child, we hereby recognize the oral
contract between Junior and Glover concerning parentage. The foregoing
exchange of promises is not so vague or ambiguous as to preclude a legal
contract because one of the parties did not expect legal consequences to flow
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from their agreement.9 Indeed, in rejecting Glover’s protestation that she, in
fact, did not intend to bestow any legal rights upon Junior, the trial court was
incredulous. It proclaimed, “[t]o the extent that Glover alleges she[, an
attorney,] was unable to legally consent to a contract or understand the terms
of the contracts that she signed, these allegations are either unproven, not
credible [or] waived as she has not raised the same on appeal.” Trial Court
Opinion, 8/1/22, at 10.
The certified record sustains the trial court’s credibility assessment. In
fact, approximately five months after Glover initiated the IVF program with
Junior’s financial contributions and emotional support, Glover ratified the
couple’s arrangement by executing a December 2021 affidavit, which noted
the then-anticipated adoption and further endorsed Glover’s desire for Junior
to “become a legal parent, with rights equal to [Glover’s] rights as a biological
____________________________________________
9 While nothing in the oral agreement specifically provided that Junior was to
be listed on the child’s birth certificate, that proviso was unnecessary as,
pursuant to current Pennsylvania guidelines, the biological parent’s spouse is
automatically listed as the other parent on the birth certificate. See
https://www.health.pa.gov/topics/certificates/Pages/New-Parent.aspx (“If
you were married at the time of your child’s birth, then the birthing parent’s
spouse is the child’s legal parent unless a specialized registration process has
been used to list a biological parent on your child’s birth record.”). This
guideline is the modern application of the antiquated regulation, entitled
“Registration as other than the child of the mother’s husband,” which requires,
inter alia, the submission of an affidavit in order to avoid naming the spouse
as a parent or to register a different individual as parent. See 28 Pa.Code
§ 1.5.; see also BUREAU OF HEALTH STATISTICS AND REGISTRIES, PENNSYLVANIA’S
BIRTH REGISTRATION POLICY MANUAL, August 2021, at 21 (affidavit required
“under the Vital Statistics Law when a married birthing parent decides to not
name a legal spouse as the other parent of the child.”).
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parent.” Glover Affidavit, 12/2/21, at 1 ¶4. The affidavit continued, “I want
Nicole Shawan Junior to become a legal parent to this child because I believe
it is in the best interest of the child.” Id. at ¶10. In light of Glover’s recurring
statements of assent, the certified record supports the trial court’s finding that
Glover fully understood the extent of the agreement.
Thus, as outlined supra, we find that Junior has an enforceable right to
parentage under principles of contract law. The certified record demonstrates
the parties’ mutual assent, actions in furtherance of the sufficiently definite
terms of the agreement, and consideration. 10
____________________________________________
10 Assuming arguendo, that Junior did not have a contractual right to
parentage, relief is also warranted under the court’s equitable power. Phrased
differently, Glover’s actions and representations regarding the child’s
anticipated parentage were grounds under the doctrine of equitable estoppel
to preclude her from challenging Junior’s parentage. This is not an entirely
novel application of the doctrine. As we observed in explaining the roots of
the related doctrine of paternity by estoppel, “In simplistic terms, the doctrine
of equitable estoppel upon which paternity by estoppel is based is one of
fundamental fairness such that it prevents a party from taking a position that
is inconsistent to a position previously taken and thus disadvantageous to the
other party.” See C.T.D. v. N.E.E, 62, 653 A.2d 28, 31 (Pa.Super. 1995)
(cleaned up).
Equitable estoppel binds a party to the implications created by their words,
deeds or representations. In L.S.K. v. H.A.N., 813 A.2d 872, 877 (Pa.Super.
2002), we explained,
Equitable estoppel applies to prevent a party from assuming a
position or asserting a right to another’s disadvantage inconsistent
with a position previously taken. Equitable estoppel, reduced to
its essence, is a doctrine of fundamental fairness designed to
preclude a party from depriving another of a reasonable
expectation when the party inducing the expectation albeit
(Footnote Continued Next Page)
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Alternatively, even if the record did not establish the three elements of
contract, we would affirm the trial court order pursuant to the application of
“intent-based parentage” that the High Court recognized but was unable to
adopt under the facts extant in C.G., supra at 904 n.11. Specifically, the
Court observed, “this case does not present an opportunity for [finding an
alternative approach to parentage], as the trial court found as fact that the
parties did not mutually intend to conceive and raise a child, and the parties
did not jointly participate in the process.” Id. The respective concurring
opinions of Justices Dougherty and Wecht outlined their perspectives of intent-
based parentage, but nonetheless agreed that the factual record did not
warrant its application in that case. In this vein, Justice Dougherty reasoned
that it was not necessary “to endorse any particular new test” because the
Court was bound by the factual findings that there was no mutual intent to
conceive and raise a child, or evidence of shared participation in the
____________________________________________
gratuitously knew or should have known that the other would rely
upon that conduct to his detriment.
Id. (cleaned up).
Instantly, Glover’s actions and representations throughout the
technologically-assisted pregnancy demonstrated her assent to Junior’s
parentage. The record bears out Junior’s detrimental reliance and endurance
of severe prejudice if Glover were permitted to deny parentage at this
juncture. Thus, in addition to affirming the trial court’s analysis of the parties’
respective contractual rights, we find the alternative grounds to affirm the trial
court’s order as a matter of equity. See C.T.D., supra at 31 (“Principles of
estoppel are peculiarly suited to cases where . . . no presumptions of paternity
apply.”)(cleaned up).
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reproductive process. He further noted that those findings “preclude a holding
that C.G. has standing as a parent under any of the proffered definitions of
intent-based parentage.” Id. at 913.
Justice Wecht, joined by Justice Donohue, observed that “[r]eliance
solely upon biology, adoption and contracts is insufficient” in some situations
and articulated his comprehensive perspective that, “in cases involving [ART],
courts must probe the intent of the parties.” Id. at 913-14 (footnote omitted).
However, he too was constrained to concur with the majority’s decision based
upon the trial court’s findings of fact. Justice Wecht explained,
While I would embrace an intent-based test for parentage
for persons pursuing parentage through ART, I nonetheless concur
with the Majority’s determination that C.G. was not a parent under
the facts of this case as found by the trial court. As the Majority
notes, the trial court found that J.H. was credible when she
testified that C.G. never intended to be a parent to Child
and that C.G. did not act as a parent. Further, the trial court
credited testimony that C.G. and J.H. reached no mutual
decision to become parents. Given that there was no
documentary evidence of C.G.’s intent to parent, and given that
the trial court found, consistent with the record, that C.G.’s actions
were not those of a parent, I join the Majority’s conclusion that
C.G. did not have standing as a parent pursuant to 23 Pa.C.S.
§ 5324.
Id. at 917 (emphases added, footnotes omitted). Overall, Justice Wecht
concluded, “I think that today’s case is a missed opportunity for this Court to
address the role of intent in analyzing parental standing in ART cases.” Id. at
918.
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The facts of this case, however, provide another opportunity.11 Here,
our review of the certified record in this appeal easily supports a finding of
parentage by intent. Indeed, Glover consistently represented over a thirteen-
month period that she intended to share with Junior parentage of the couple’s
child conceived through ART. As previously discussed, Glover contracted with
Fairfax Cryobank and RMA Fertility and she assented to identifying Junior as
the “co-intended Parent” and “Partner,” respectively. Even after doubting her
romantic commitment to Junior, Glover continued to pursue the pregnancy
with Junior’s financial assistance and shared emotional burden.
____________________________________________
11 Notwithstanding the apprehension expressed in the Concurring Opinion
about exceeding our authority as an intermediate appellate court by applying
an intent-based approach in this case, it is beyond cavil that this Court
regularly confronts matters of first impression. See e.g., Reber v Reiss, 42
A.3d 1131, 1134 (Pa.Super. 2012) (addressing issue of first impression that
arose as a result of advances in reproductive technology, i.e., “the contested
disposition of frozen pre-embryos in the event of divorce”). Thus, while the
Concurring Opinion accurately outlines the limitations of our authority as an
error-correcting court, when we are addressing a matter of first impression,
which, by definition, means there is an absence of clear precedent, “our role
as an intermediate appellate court is to resolve the issue as we predict our
Supreme Court would” address it. Ridgeway ex rel. Estate of Ridgeway
v. U.S. Life Credit Life Ins. Co., 793 A.2d 972, 975 (Pa.Super. 2002); see
also Vosk v. Encompass Ins. Co., 851 A.2d 162, 165 (Pa.Super. 2004)
(quoting Ridgeway, supra at 975); eToll, Inc. v. Elias/Savion Advert.,
Inc., 811 A.2d 10, 15 (Pa.Super. 2002) (“when presented with an issue for
which there is no clear precedent, our role as an intermediate appellate court
is to resolve the issue as we predict our Supreme Court would do.”).
Consistent with the foregoing authority, we resolve the novel issue presented
in this appeal by applying the principles of parentage by intent that Justices
Dougherty and Wecht discussed in C.G., supra.
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Glover further led her spouse to believe that they would share
parentage. Junior participated in the decision to conceive their son with the
shared intent to raise him together. Likewise, Junior consistently identified as
an intended parent, and with Glover’s express consent and endorsement,
Junior performed the role of an expectant parent, including participating in
the selection of the sperm donor and naming their child after conception.
During the evidentiary hearing, Junior testified that, in the role as the “co-
intended Parent” under the Fairfax Cryobank contract, the couple collectively
selected a sperm donor from Fairfax Cryobank based specifically on the
donor’s physical appearance, interests, and genetic lineage. Id. at 25. Junior
explained, “We were looking for sperm donors who . . . resembled me as much
as possible, because we . . . were us[ing] [Glover’s] egg, and we wanted our
child to look as much like both of us as possible.” Id. Thus, in identifying a
photograph of the sperm donor, Junior observed, “he’s dark-skinned, like I
am. He has almond shaped eyes like I do. He has a huge . . . wide smile like
I do. He has high cheekbones like I do. In addition to that when we looked
more deeply into the details, he’s a Sagittarius like I am.” Id. at 26. In
addition, both the donor and Junior traced their indigenous history to Benin,
Africa. Id. In all, Junior stated, “primarily, it was because . . . we shared so
much in common—the donor and I—and [Glover] and I both kept remarking
on how [it was] kismet . . . [.]” Id.
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Thus, in addition to affirming the trial court order establishing Junior’s
parentage based on contract principles, we affirm it upon our application of
the principles of intent-based parentage that the concurring justices
highlighted in C.G. Stated plainly, this appeal is the paradigm of intent-based
parentage in cases involving ART, where the couple not only evidenced their
mutual intent to conceive and raise the child, but they also participated jointly
in the process of creating a new life.
Order affirmed.
Judges Olson, Dubow, Kunselman, McLaughlin, and McCaffery join this
Opinion.
P.J. Panella and Judge Murray concur in the result.
Judge King files a Concurring Opinion in which P.J. Panella and Judge
Murray join.
Date: 12/11/2023
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