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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHANEL 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: BOWES, J., KING, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED FEBRUARY 24, 2023
I believe that Ms. Junior established a contract-based right to parentage,
as evidenced by the couple’s collective intent and shared cost in conceiving a
child with her wife, Ms. Glover, via assisted reproductive technology.
Alternatively, I believe Ms. Junior established her parentage as a matter of
equity. Accordingly, I respectfully dissent.
The learned majority succinctly summarized the relevant facts and
procedural history. Accordingly, I do not reiterate them herein. Similarly, the
majority explained that while parentage is typically established biologically or
through formal adoption, our High Court has recognized that in cases involving
assistive reproductive technology, “contracts regarding the parental status of
the biological contributors must be honored in order to prohibit restricting a
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* Retired Senior Judge assigned to the Superior Court.
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person’s reproductive options.” Majority Memorandum at 7 (quoting C.G. v.
J.H., 193 A.3d 891, 903-04 (Pa. 2018) (cleaned up). As acknowledged by
the High Court, “[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.
While my esteemed colleagues delineate the relative contractual
obligations outlined between the parties in the Fairfax Cryobank Agreement
that identified Junior as the “co-intended Parent” and the couple’s in vitro
fertilization (“IVF”) agreement with RMA Fertility, that Junior executed as the
“Partner,” it did not address the contract between Mss. Junior and Glover
concerning parentage—as cogently outlined in the trial court’s comprehensive
discussion of the party’s mutual intent to establish Ms. Junior’s parentage.
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.”).
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
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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. 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 enforcible 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. (cleaned up) (quotations and citations omitted).
Instantly, as highlighted by the trial court, the certified record is replete
with evidence of the parties’ mutual assent to conceive a child of their
marriage using assisted reproductive technology, bestow upon Ms. Junior legal
parent status, and to raise the child together as co-parents. See Trial Court
Opinion, 8/1/22, at 9-10. Moreover, 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[,]” Ms. Junior satisfied both these components. In my mind, the only
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question is whether the oral agreement was supported by consideration or
some other form of validation. For the reasons that follow, I would find that
it was.
As our Supreme Court explained in Pennsylvania Envtl. Def. Found.
v. Commonwealth, 255 A.3d 289, 305 (Pa. 2021), “Consideration 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 Ms. Junior’s petition, Ms. Junior
testified that she paid for one-half of all the expenses, including fees
associated with the preliminary medical tests, in vitro fertilization, and hiring
a doula to assist Ms. Glover during the birth. N.T., 5/3/22, at 17, 44. When
asked about the extent of the equally shared costs, Ms. Junior declared,
“Everything: the IVF, the doula, the second parent adoption, everything.
Everything.” Id. at 44.
Ms. Junior also described her shared emotional role, noting how, for
three months, she was required to administer daily fertility injections into
Ms. Glover’s abdomen in anticipation of having her eggs removed for
fertilization. Id. at 18-19. After the pregnancy was confirmed, Ms. Junior
administered daily dosages of progesterone to help prevent miscarriages. Id.
at 19. Additionally, she regularly accompanied Ms. Glover to the obstetrician.
Id. at 20. In sum, she described 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,
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that everything was coming along [as planned], and also doing
sonograms.
And then, finally, we had completed [the assisted
reproductive technology]. Like I said, I gave the injections for
over three months, but now we were able to go to directly to
Thomas Jefferson, 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 he – 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.
Ms. 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 Ms. Junior. Id. at 59.
Ms. Glover addressed this apparent dichotomy during the evidentiary hearing
in explaining why, despite her apprehensions about continuing her romantic
relationship with Ms. Junior, she nevertheless executed the fertility contracts
identifying Ms. 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
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[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, Ms. Glover agreed that her spouse,
Ms. Junior, would possess parental rights to the child conceived through their
combined efforts.
In my view, the foregoing exchange of promises is not so vague or
ambiguous to preclude a legal contract because one of the parties did not
expect legal consequences to flow from their agreement. Indeed, in rejecting
Ms. Glover’s protestation that she, in fact, did not intend to bestow any legal
rights upon Ms. 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.
Indeed, approximately five months after Ms. Glover initiated the IVF program
with Ms. Junior’s financial contributions and emotional support, Ms. Glover
ratified the couple’s arrangement by executing a December 2021 affidavit,
which noted the then-anticipated adoption and further endorsed Ms. Glover’s
desire for Ms. Junior to “become a legal parent, with rights equal to
[Ms. Glover’s] rights as a biological parent.” Glover Affidavit, 12/2/21, at 1 ¶
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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 Ms. Glover’s recurring statements of assent, I share the
trial court’s skepticism that Ms. Glover did not comprehend the extent of the
agreement.
Thus, as outlined supra, I believe Ms. Junior has an enforceable right to
parentage under principles of contract. The certified record demonstrates the
parties’ mutual assent, actions in furtherance of the agreement, and
consideration. Accordingly, I respectfully disagree with the majority’s
determination that no enforceable contract conferred parental rights on
Ms. Junior.
Furthermore, even if Ms. Junior did not have a contractual right to
parentage, I believe that she warranted relief under the court’s equitable
power. Phrased differently, I would find that Ms. Glover’s actions and
representations regarding the child’s anticipated parentage were grounds
under the doctrine of equitable estoppel to preclude her from challenging
Ms. Junior’s parentage. My reasoning follows.
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
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preclude a party from depriving another of a reasonable
expectation when the party inducing the expectation albeit
gratuitously knew or should have known that the other would rely
upon that conduct to his detriment.
Id. (cleaned up).
With this principle in mind, I detail the following evidence regarding
estoppel. Herein, Ms. Glover represented over a thirteen-month period that
she intended to share parentage of the couple’s child conceived through
assisted reproductive technology. As previously discussed, Ms. Glover
contracted with Fairfax Cryobank and RMA Fertility and she assented to
identifying Ms. Junior as the “co-intended Parent” and “Partner,” respectively.
Even after doubting her romantic commitment to Ms. Junior, Ms. Glover
continued to pursue the pregnancy with Ms. Junior’s financial assistance and
shared emotional burden.
Ms. Glover further led her spouse to believe that they would share
parentage. Ms. Junior participated in the decision to conceive their son with
the shared intent to raise him together. Likewise, she consistently held herself
out as an intended parent, and with Ms. Glover’s express consent and
endorsement, Ms. 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, Ms. Junior testified that, in her
role as the “co-intended Parent” under Fairfax Cryobank contract, the couple
collectively selected a sperm donor from Fairfax Cryobank based specifically
on the donor’s physical appearance, interests, and genetic pedigree. Id. at
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25. She explained, “We were looking for sperm donors who . . . resembled
me as much as possible, because we . . . were us[ing] [Ms. 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, Ms. 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 Ms. Junior traced their indigenous
history to Benin, Africa. Id. Overall, she stated, “primarily, it was because .
. . we shared so much in common—the donor and I—and [Ms. Glover] and I
both kept remarking on how [it was] kismet. . . [.]” Id.
From my perspective, Ms. Glover’s actions and representations
throughout the technologically-assisted pregnancy demonstrated her assent
to Ms. Junior’s parentage. Ms. Junior relied upon these actions and
representations to her detriment and would be severely prejudiced if Ms.
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, I would find the alternative grounds to affirm the trial court’s order as
a matter of equity.1
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1 It is axiomatic that this Court can affirm the trial court order for any reason
supported by the certified record. D.M. v. V.B., 87 A.3d 323, 330 n.1
(Pa.Super. 2014).
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Finally, while I believe that we should affirm the trial court order for the
above-stated reasons, I also note that this case presents a perfect opportunity
for the High Court to delineate the proper application of “intent-based
parentage” as the High Court outlined the principle in C.G., supra. The C.G.
Court was asked to confront whether an unmarried former same-sex partner
had standing as a “parent” pursuant to § 5324(1) of the Child Custody Act.
In rejecting the former partner’s standing claim, the 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 the former partner had no biological
connection to the child, had not officially adopted the child, and did not have
contract rights that have been recognized as affording legal parentage by way
of contract, the High Court concluded that she was not a parent.
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).
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In their respective concurring opinions, 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 reproductive process. As stated by the esteemed Justice
Dougherty, 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 argued that “[r]eliance solely upon biology, adoption and
contracts is insufficient” in some situations and articulated his comprehensive
perspective that, “in cases involving assisted reproductive technologies
(“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. The learned justice
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
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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.
Thus, although I would affirm the trial court order establishing
Ms. Junior’s parentage, insofar as my position failed to garner the support of
a majority of my colleagues on this panel, I highlight the opportunity for the
Supreme Court to consider the issue of intent-based parentage within the
factual framework that was missing in C.G. Stated plainly, the case at bar
presents the necessary facts to serve as the paradigm for the High Court to
affirm the viability of intent-based parentage in cases involving assisted
reproductive technology where the couple not only evidenced their mutual
intent to conceive and raise the child, but they also participated jointly in the
process.
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