On December 11, 2023, the Pennsylvania Superior Court after hearing the matter en banc issued an opinion expanding the definition of “parent” under Pennsylvania law. Prior to this ruling, typically the term “parent” was limited to biological or adopted parents, presumption of paternity or parentage, and paternity by estoppel. The crux of the legal question involved is whether the parentage of a child can be established by contract.

The underlying facts involve a same-sex couple who were legally married in 2021. During their marriage, the couple pursued In Vitro Fertilization (“IVF”) using Glover’s eggs and sperm from a donor. Throughout this process, the parties executed numerous agreements with fertility clinics, sperm banks, and attorneys, and executed affidavits affirming their intent to have Junior adopt the child upon birth. Ultimately IVF was successful and a child was conceived. However, prior to the birth of the child, the couple broke up and began divorce proceedings. Glover, the biological mother, expressed that she would no longer allow Junior to adopt the child as originally anticipated.

The Superior Court held that Junior had a contract-based right to parentage. The Court reasoned that parentage by contract was established because the parties demonstrated mutual assent for Junior to be the child’s second parent for which consideration was paid. The parties signed two assistive fertilization agreements and a retainer agreement for adoption wherein Junior is identified as a party or “co-intended parent.” Given all of the facts in this case, it was readily apparent that the parties intended for Junior to be the child’s other parent. The Court also reasoned that Junior provided both emotional and financial consideration for the agreement. Junior paid for half of all of the expenses associated with IVF, medical bills, and the anticipated adoption. Further, not only did she provide financial support, but Junior assisted with Glover’s IVF injections for months in their efforts to get pregnant.

The Court also took the opportunity to adopt an “intent-based parentage” test in relation to artificial reproductive technologies. Specifically, where a couple not only evidenced their mutual intent to conceive and raise a child but participated jointly in the process of creating a new life, the nonbiological party may have standing as a parent.

This decision is not surprising, as the courts have repeatedly recognized the evolving role played by alternative reproductive technologies and that clinical options for conception are increasingly common in the modern reproductive environment.