IVF Wars Continue | Pennsylvania Family Law
In 2021 two women were married. They moved to Pennsylvania where they decided to conceive a child through in vitro fertilization. One spouse, Chanel Glover formed a contract for the storage of her eggs with a local cryobank. She is the only spouse who is a party to that contract. Nicole Junior is listed as the co-intended parent. The contract with cryobank states that Glover was the legal parent of any child and would assume custodial and support responsibilities. The decision of the Superior Court informs us that the sperm donor was selected “jointly.” A revised document was signed in July that terms Glover as the “patient” and Junior as the “partner.” Both parties signed that document although it seems to be related to the process rather than the underlying IVF contract. Glover did become pregnant one month later in August 2021. In October the couple hired a common lawyer to shepherd the adoption. In December Glover signed a document acknowledging the intention for Junior to be a full parent with full rights. They also each signed a document accepting joint representation by the law firm they engaged in October. In January 2022, the parties separated first in their common apartment and discussions ensued about Junior (the non pregnant spouse) intending to move to Washington state in July. Glover’s response was to stop keeping Junior aware of milestones in the pregnancy. In April 2022, the pregnant Glover filed for divorce. Junior responded with a special relief petition to confirm parentage and associated rights. Philadelphia County held a hearing and on May 3, 2022 confirmed that Junior had custodial rights. The court indicated that this was not a custody order but that until the child arrived, Junior was to have all rights ordinarily accorded a parent including access to the birth process and information about what evolved in the pregnancy. Glover appealed this order. The child was born on May 22, 2022.
Bear in mind that the May 4 order well precedes the birth of the subject of the litigation. But the trial court found that its order was grounded upon the December 2021 documents by which Glover stated that she intended for Junior to have all the rights of a parent. From the viewpoint of the trial court, these joint affidavits and the joint engagement of a doula to assist with the birth represented a contract to which contract principles applied. Glover asserted these documents did not constitute an enforceable contract. She also asserted that there being no child born as of early May, there was not subject matter jurisdiction.
The memorandum opinion of the Superior Court acknowledged that this is an evolving area of law but reversed the trial court ruling. Citing the Supreme Court in C.G. v. G.H , the appellate court notes that contracts can confer rights even before the actual subject of the case arrives in the world. 193 A.3d 891 (2018). Reviewing C.G., a case known as Baby S. and Ferguson v. McKiernon the court noted that no rights can be conferred to an unborn child absent an agreement. The question then devolved to whether the documents were enough to establish an agreement.
Reviewing the C.G. case the Superior Court noted that while Junior may have financed the transaction, she did not sign the IVF contracts. Obviously, there had been no legal adoption by which Junior would have expressly assumed the duties of parentage. The Court found no document that itself demonstrated that Junior had assumed parental rights and responsibilities. The majority acknowledge that documents show an intention to adopt but not an enforceable right to adopt on the part of the non-parent. Judge Pellegrini’s opinion in which Judge King “joins” and Judge Bowes dissents suggests that absent an affirmative statement of agreement that a non biological parent “will” be named as the parent as birth and “will” assume the rights and responsibilities of a parent from birth rather than adoption was insufficient to confer standing for the order that issued.
This is a supremely important decision whether one agrees or not with it. We just wrote about a decision where a Virginia court evaluated a fertilized egg as “property.” But our reading of this Pennsylvania case would seem to indicate that if a person signs documents acknowledging that he or she will become a parent and assume parental rights and responsibilities of a fetus at birth, a property right would exist. Technically, that is a stretch beyond the actual facts here because documentary acknowledgments are not present in Glover v. Junior. But the die would seem to be cast based upon the evolving case law. Today, the Attorney General of Pennsylvania states that abortions remain legal in Pennsylvania up to 23 weeks after conception. But, if a non-parent did sign the appropriate documents and there was otherwise an agreement to bring a child from conception to birth, it would seem that a non parent might have standing to enjoin an abortion before 23 weeks. The corollary question is how a court would respond to a suit to enjoin any abortion initiated by a non parent who properly “signed on” but had fears that the gestational parent might avail herself of the right to abort without consent.
Again, this is a non precedential decision and perhaps it was unpublished because of the implications just described. The clear message is that words matter and that anyone who prepares or signs pre birth documents related to a fertilized embryo needs (a) independent counsel and (b) a complete understanding of what those documents could mean during the 40 weeks that separate conception to birth.
The case: Reargument was sought on March 3, 2023. No ruling as of this post on 3/30/23.
