[J-50-2024]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.


  CHANEL GLOVER,                                  :   No. 9 EAP 2024
                                                  :
                       Appellant                  :   Appeal from the Order of the
                                                  :   Superior Court entered on
                                                  :   December 11, 2023, at No. 1369
                v.                                :   EDA 2022, affirming the Order of the
                                                  :   Court of Common Pleas of
                                                  :   Philadelphia County, Domestic
  NICOLE JUNIOR,                                  :   Relations Division, entered on May
                                                  :   4, 2022, at No. D22048480.
                       Appellee                   :
                                                  :   ARGUED: September 11, 2024

OPINION

 JUSTICE DOUGHERTY                                              DECIDED: March 20, 2025
                                    I.     Introduction

       Our law in this Commonwealth presently recognizes four pathways to establish

 legal parentage: biology, adoption, equity (i.e., parentage by a marital presumption or

 estoppel), and contract where a child is born using Assistive Reproductive Technology

 (ART). As we explain below, none of these existing paths applies to the facts of this case,

 which involves a married same-sex couple who conceived a child using a sperm donor

 and ART but did not enter into a contract and separated before the child was born. We

 believe the time has come for our law to embrace a fifth pathway to parentage to account

 for the situation at hand. We thus adopt the doctrine of intent-based parentage into our

 common law and affirm the Superior Court en banc to the extent it found parentage was

 established under that theory.
                                         II.     Background

       Chanel Glover and Nicole Junior met in 2019, and they got married in California in

January 2021. The couple discussed starting a family using ART, even before marriage.

The month they got married, they reached out to a fertility clinic, RMA South California

(RMA), to learn about their options. The parties attended a consultation about different

ART options and later underwent blood testing. They eventually decided to pursue

conception using in vitro fertilization (IVF).

       On February 3, 2021, the couple entered into a contract with Fairfax Cryobank for

donated sperm. The contract listed Glover as the “Intended Parent[]” and Junior as the

“Co-Intended Parent[].” Fairfax Cryobank Contract at 1. The contract had a signature

line for the “Intended Parent” but not the “Co-Intended Parent,” and only Glover signed

the document. See id. at 5.1 Thereafter, the couple jointly selected a sperm donor. Junior

testified the couple chose the specific sperm donor because he shared resemblances

with Junior, who would not be biologically related to the Child, and the couple believed

the similarities to be “kismet.” See N.T. 5/3/2022, at 25-26 (explaining like Junior, the

donor had dark skin, almond-shaped eyes, a wide smile, high cheekbones, was a

Sagittarius, traced his ancestry to Benin, and had an appreciation for the arts).

       Subsequently, the couple decided to move to Pennsylvania to be closer to family,

and in April 2021, they moved to Philadelphia. There, they continued to work with RMA

at its Philadelphia-area location. On July 11, 2021, both parties entered into an IVF

contract with RMA, the “CareShare Agreement,” wherein Glover signed as “Patient” and

Junior signed as “Partner.” RMA CareShare Agreement at 9. That contract explained

RMA’s CareShare program operates differently than a traditional IVF program, as it

1 Junior was further identified as a “Designated Individual” who was given access to

Glover’s client account information and the ability to authorize shipment of Glover’s vials
to the identified physician. Fairfax Cryobank Contract at 7.


                                        [J-50-2024] - 2
“allows for the possibility of multiple IVF cycles for a single fee and, under certain

circumstances, provides a refund[,]” rather than requiring patients to pay for individual IVF

treatment cycles. Id. at 1. Within the contract, Glover and Junior agreed to (among other

things) payment of RMA’s fees and waiver of related health insurance claims. See id. at

3.2 In August of 2021, Child was conceived via IVF using Glover’s egg and the sperm

from Fairfax Cryobank. As part of that process, Junior accompanied Glover to King of

Prussia for the medical procedure to retrieve her eggs and waited in the parking garage

with Glover’s mother. Junior also administered to Glover various hormone injections into

her abdomen and buttocks over a period of three months before and after conception.

After Glover became pregnant, she and Junior jointly attended obstetrics appointments.

       In November 2021, both Glover and Junior signed a Representation Agreement

with Jerner Law Group, P.C., in anticipation of Junior’s “Confirmatory Step-Parent

Adoption” of Child. See Jerner Representation Agreement (Oct. 13, 2021 email from

Rebecca L. Nayak to Glover and Junior); Confirmation of Representation Agreement

(signed by Junior and Glover 11/1/2021 and 11/2/2021, respectively). In the contract with

Jerner, the parties agreed to joint representation and terms of payment. On December

5, 2021, both parties signed affidavits expressing their intent for Junior to adopt Child. In

Glover’s affidavit, she attested, inter alia: “I am married to [Junior] and we intend to remain

a committed couple”; “I am seeking to have my spouse, [Junior,] adopt this child in order

to provide this child with the legal stability of two parents”; “I understand that this means

2 The CareShare contract further provided:


       You and your partner, if applicable, must jointly sign this Agreement. If
       during the term of this Agreement there occurs a change in legal or other
       status (i.e. divorce, legal separation or annulment), you are required to
       immediately notify RMAPHL and you will be deemed to have self-withdrawn
       from the Program, and you will not be entitled to a refund.
RMA CareShare Agreement at 6.


                                       [J-50-2024] - 3
[Junior] will become a legal parent, with rights equal to my rights as a biological parent”;

“I understand that this means [Junior] will have custody rights and child support

obligations to this child if we ever separate in the future”; “I understand that an adoption

decree is intended to be a permanent court order, which cannot be changed or undone

in the future”; “I understand that, because I have chosen not to seek outside counsel, I

am waiving my right to confidentiality with respect to [Junior]. . . . In the event of future

litigation between me and [Junior], I consent to the release of this Affidavit to [Junior]”;

and “I want [Junior] to become a legal parent to this child because I believe it is in the

best interests of the child.” Glover Aff., 12/5/2021 (emphasis in original). Junior attested

to the same. See Junior Aff., 12/5/2021. Additionally, the parties jointly entered into a

contract with a doula in January 2022. In the doula contract, the parties agreed to the

doula’s terms of service, fees, and payments. Both Glover and Junior were listed as

“Client[s],” and they both signed the contract.      Doula Contract at 4 (unpaginated).

Together, the parties also picked out a name for the child, which included a hyphenated

last name combining “Glover” and “Junior.”3

       Over the next few months, the parties’ relationship deteriorated. In early January

of 2022, Junior moved out of the couple’s shared bedroom into the basement of their

residence. On March 17, 2022, Glover learned Junior (who was in Washington state

attending multiple writers’ residencies) would be returning to Philadelphia two days later

and intended to move out of the shared residence when the lease expired on July 31,

2022. At some point, Glover stopped sharing her Google calendar with Junior (which

included obstetrics appointments), ended joint appointments with the doula, and

cancelled the baby shower that the parties planned together. In March of 2022, Glover


3 The trial court found that “[e]ven after separation, Glover advised Junior that she
intended to use the agreed upon name for the expected child.” Trial Court Op. at 3.


                                      [J-50-2024] - 4
informed Junior that she no longer intended to proceed with Junior’s second-parent

adoption. On April 18, 2022, Glover filed the underlying complaint in divorce.

      Then, on April 27, 2022, Junior filed a petition for special relief for pre-birth

establishment of parentage and an emergency petition for the same. In the petitions

(which were the impetus for the present appeal), Junior sought an order (1) confirming

Junior as a legal parent to the child, (2) requiring that Junior be informed as soon as

Glover went into labor and that Junior be given access to the hospital and the child after

birth, and (3) ordering that Junior’s name appear as the second parent on the child’s birth

certificate. Glover filed an answer challenging the petition, and the family court held an

evidentiary hearing on May 3, 2022.

      The next day, the family court entered an order in Junior’s favor:
      It is hereby ordered and decreed that: (1) [Junior] is confirmed as the legal
      parent of the child conceived during [Junior’s] marriage to [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 [Junior] is the child’s 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.




                                      [J-50-2024] - 5
Trial Court Order, 5/4/2022 at 1. Glover timely appealed, questioning, inter alia,4 “[d]id

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 Superior Court Brief at 5.5

       The trial court issued a Rule 1925(a) opinion in support of its order. Primarily, the

court held “Junior is the legal parent of the child pursuant to the law of contracts.” Trial

Court Op. at 7 (capitalization omitted). The trial court explained “Pennsylvania courts

have recognized the validity and enforceability of contracts involving [ART].” Id. at 8,

citing C.G. v. J.H., 

 (Pa. 2018) (“there appears to be little doubt that the

case law of this Commonwealth permits assumption or relinquishment of legal parental

status, under the narrow circumstances of using [ART], and forming a binding agreement

with respect thereto”); Ferguson v. McKiernan, 

 (Pa. 2007) (enforcing oral

contract between biological birth mother and sperm donor for release of donor’s parental



4 Glover also raised the following questions:


       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[?]
Glover’s Superior Court Brief at 5. The Superior Court disposed of these issues in
Junior’s favor, Glover does not challenge those holdings on appeal to this Court, and we
do not discuss them further.
5 Glover also filed an application for emergency relief requesting a stay of the court’s May

4, 2022 order. Initially, the Superior Court temporarily stayed the trial court’s order
pending the filing of related pleadings, and then issued a per curiam order granting in part
and denying in part the emergency petition for a stay. Specifically, the Superior Court
stayed the May 4, 2022 order only insofar as it directed that Junior’s name appear on the
birth certificate. Additionally, after Child’s birth on May 25, 2022, Junior filed a Complaint
for Shared Physical Custody. The parties have not elaborated on the status of the
custody litigation, but during oral argument before this Court, counsel mentioned that
Junior has not had contact with the Child. See also Glover v. Junior, 

, 905
n.3 (Pa. Super. 2023) (en banc).


                                       [J-50-2024] - 6
rights/obligations); In re Baby S., 

 (Pa. Super. 2015) (enforcing written

contract eliminating parental rights of gestational carrier and imposing parental

rights/obligations on intended non-biological mother).6

       Considering that precedent, the trial court found a contract existed under the facts

of this case. It looked at the evidence showing Glover and Junior, as a married couple,

mutually agreed to conceive a child using ART, including the various written agreements

and the parties’ affidavits. The court then determined “the undisputed evidence . . .

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 Child [conceived] through the use of [ART].” Id. at 9-10.7

       On appeal, a three-judge panel of the Superior Court initially reversed the trial

court’s decision, holding Junior’s parentage was not established by contract. Although

the majority recognized parentage contracts in the ART context are enforceable, it held

no contract existed in this case to confer parental rights on Junior. Looking at the written

contracts, it determined none of the documents identify Junior as the legal parent to Child.

Judge Bowes dissented, reasoning that beyond the terms of the written contracts

discussed by the panel majority, an oral contract existed between Junior and Glover, or

alternatively, that parentage could be established using estoppel principles. Finally,




6 The trial court further recognized that in C.G., three Justices (including this author)

expressed their belief in two concurring opinions that the C.G. majority’s conception of
parentage was too narrow, and that parentage may be determined by the intent of parties
who conceive a child together using ART. See Trial Court Op. at 9. The trial court agreed
and “urge[d] the appellate courts, when presented with a factually appropriate scenario,
[to] adopt an intent-based analysis for persons pursuing parentage through [ART].” Id.
7 The trial court alsospecifically stated it did not apply the doctrines of paternity by
estoppel or presumption of paternity when considering Junior’s legal parentage. See Trial
Court Op. at 12-13.


                                      [J-50-2024] - 7
Judge Bowes noted this case presents a perfect opportunity for this Court to delineate

the proper application of intent-based parentage as discussed in C.G.

       Junior filed an application for re-argument en banc, which the Superior Court

granted. The en banc panel affirmed the trial court, with Judge Bowes now writing for the

majority. See Glover v. Junior, 

 (Pa. Super. 2023) (en banc). As an initial

matter, the court held the marital presumption of parentage did not apply. It explained

the marital presumption doctrine provides that “generally, a child conceived or born during

the marriage is presumed to be the child of the marriage; this presumption is one of the

strongest presumptions of the law of Pennsylvania[.]” 

, quoting Brinkley v. King,

 (Pa. 1997) (plurality). The Superior Court elaborated that while the

presumption is equally applicable to same-sex and opposite-sex spouses, see Int. of

A.M., 

 (Pa. Super. 2019), its purpose is “to preserve the inviolability of

the intact marriage,” and thus it is inapplicable if there is no intact family or marriage to

preserve. Glover, 

. The court recognized “the onset of the divorce

proceedings is not determinative” of whether the doctrine’s purpose can be served, but it

looked to the trial court’s factual findings and held “the certified record demonstrates that

the marriage was over at the time parentage was placed at issue.” 

.

       The en banc majority next turned to the crux of the trial court’s holding — whether

a contract existed.   Addressing the standard of review, the court stated, “[w]hether

individuals can enter into an enforceable agreement to determine parentage and parental

rights involves a legal question that we review de novo.” 

 citing Ferguson, 

. It further determined its “scope of review is plenary.” Id.8 The court then


8 We note the Superior Court earlier stated it “review[s] orders relating to parentage for

an abuse of discretion or an error of law.” Glover, 

. But it appears to
have applied the broader de novo standard of review and plenary scope of review to the
contract analysis.


                                      [J-50-2024] - 8
provided foundational principles underlying contract law. It explained the “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.” 

(citation omitted). The court explained that regardless of whether a contract is oral or

written, it must have three elements: (1) mutual assent; (2) consideration; and (3)

sufficiently definite terms. 

. It further observed:
       [N]ot every term of a contract must always be stated in complete detail. If
       the parties have agreed on the essential terms, the contract is enforceable
       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.

 quoting Helpin v. Trustees of Univ. of Pa., 

 (Pa. Super. 2009).

The Superior Court then undertook a thorough review of the preeminent cases in this

area — Ferguson, Baby S., and C.G.

       In Ferguson, we held an oral contract for sperm donation was enforceable in

Pennsylvania. There, the mother and her former paramour (sperm donor) orally agreed

he would furnish sperm in a manner akin to anonymous sperm donation: “it would be

carried out in a clinical setting; [s]perm [d]onor’s role in the conception would remain

confidential; and neither would [s]perm [d]onor seek visitation nor would [m]other demand

from him any support, financial or otherwise.” Ferguson, 

. Mother

became pregnant with twins, and both parties abided by the agreement until the twins

were about five years old. At that point, mother filed a lawsuit against sperm donor

seeking child support. The lower courts held the parties’ oral contract was unenforceable

pursuant to public policy. On appeal, we reversed.

       Despite recognizing the Commonwealth’s general policy that parents cannot

bargain away their children’s right to support, we held the oral ART contract did not violate



                                       [J-50-2024] - 9
public policy considering “the evolving role played by [ART] in contemporary American

society.” 

. “[T]he inescapable reality[,]” we observed, “is that all manner of

arrangements involving the donation of sperm or eggs abound in contemporary society,

many of them couched in contracts or agreements of varying degrees of formality.” 

(recognizing an “increasing number of would-be mothers” are using ART, and neither the

public nor the General Assembly had chosen to proscribe these arrangements). We

further reasoned that holding otherwise would limit a would-be mother to using only

anonymous sperm donation to ensure legal protections, even if she had a preference for

using the sperm of someone she knows.           Moreover, we posited that holding such

contracts unenforceable would discourage would-be donors from providing sperm

because they would be at risk of future support liability and would “significantly limit[] a

would-be mother’s reproductive prerogatives.” 

. We recognized our holding

denied the twins a second source of support, but we noted that, in the absence of the

parties’ agreement, “the twins would not have been born at all, or would have been born

to a different and anonymous sperm donor, who neither party disputes would be safe

from a support order.” 

       Nearly a decade later, the Superior Court similarly upheld multiple ART contracts

in Baby S., but there, the contracts imposed parental obligations on a non-biological,

non-gestational mother. In that case, a wife and her husband decided to use an egg

donor and a gestational carrier to conceive a child. They entered into various written

contracts identifying them as “Intended Parents.” See Baby S., 

.

Most relevantly, wife and husband entered into a contract with the gestational carrier,

which provided “[t]he Gestational Carrier shall have no parental or custodial rights or

obligations of any Child conceived pursuant to the terms of this Agreement” and that “the

Intended Parents agree to assume legal responsibility for any Child born pursuant to this




                                     [J-50-2024] - 10
Agreement[.]” 

. The parties went through with the embryo transfer, and the

gestational carrier became pregnant. Before the baby was born, husband and wife

started having marital difficulties, and wife refused to do the necessary paperwork to be

listed on the child’s birth certificate. The gestational carrier filed a petition seeking a court

order declaring wife and husband the legal parents and directing that they be named as

parents on the birth certificate.       Wife attempted to avoid parentage, arguing the

gestational carrier contract was unenforceable.

       Relying on Ferguson, the Superior Court held the contract was enforceable. The

court rejected wife’s arguments that Ferguson did not address whether parentage can be

established via contract and that it can be established biologically or by adoption only. It

emphasized that wife’s actions before and during the pregnancy “were consistent with

her declared intention to be Baby S.’s mother,” and highlighted that as in Ferguson, “Baby

S. would not have been born but for [wife’s] actions and express agreement to be the

child’s legal mother.” 

. The Superior Court then reasoned Ferguson “expressly

recognized the enforceability of a contract that addressed parental rights and obligations

in the context of [ART],” and “the evolving role played by [ART] in contemporary American

society.” 

 The Superior Court explained our “language and focus [in Ferguson] on the

parties’ intent” was “at odds” with wife’s contention that gestational carrier contracts

violated dominant public policy. 

 It added that “the Adoption Act is not the exclusive

means by which an individual with no genetic connection to a child can become the child’s

legal parent” and the Act did not evince a public policy against the enforcement of

gestational carrier contracts. 

 Thus, the court held the contract was binding and

enforceable against wife to establish her legal parentage.

       Then, in C.G., this Court reaffirmed that parentage can be established by contract,

but we did not go so far as to adopt an intent-based parentage doctrine. In that case,




                                       [J-50-2024] - 11
C.G. and J.H. were a same-sex couple who never married.9 During their relationship,

J.H. got pregnant by intrauterine insemination using an anonymous sperm donor and her

own ovum. C.G. shared no genetic relationship with the resulting child and never adopted

him, but C.G. lived with J.H. and the child for about five years before the couple separated,

at which point J.H. and the child relocated to Pennsylvania. A few years later, C.G. filed

a custody complaint seeking shared legal and partial physical custody, arguing she had

standing as a “parent” under 23 Pa.C.S. §5324 (or alternatively stood in loco parentis

under that provision), and claiming the child was conceived with the mutual intent of both

parties. J.H. refuted that claim. After considering the parties’ conflicting testimony and

evidence about C.G.’s role in the child’s conception, birth, and upbringing, the trial court

found as fact that the parties did not share an intent to conceive and raise the child

together, but that C.G. merely acquiesced to J.H. having the child. The trial court held

C.G. did not have standing (as a “parent” or otherwise), and the Superior Court affirmed.

       On appeal, we affirmed that C.G. lacked standing. We first recognized Section

5324 does not provide a definition of “parent,” but it plainly encompasses biological

mothers and fathers as well as adoptive parents. See C.G., 

. We

acknowledged, however, “the reality of the evolving concept of what comprises a family

cannot be overlooked.” 

 In that regard, we explained our courts had recognized

parentage could also be established (or relinquished) by contract in the ART context. See

, citing Ferguson and Baby S. See also 

 (“there appears to be little

doubt that the case law of this Commonwealth permits assumption or relinquishment of

legal parental status, under the narrow circumstances of using [ART], and forming a

binding agreement with respect thereto”). We held “this narrow judicial recognition of

9 When the child was born, the couple resided in Florida, where same-sex marriage and

second-parent adoptions were not recognized. They did not seek a second-parent
adoption once it was legalized in that state a few years later.


                                      [J-50-2024] - 12
legal parentage by contract” did not afford C.G. relief, as there was no dispute that C.G.

was “not party to a contract or identified as an intended-parent when J.H. undertook to

become pregnant[.]” 

 We likewise rejected C.G.’s argument our case law stood “for

the broad proposition that parentage can be established by intent in situations where a

child is born with the aid of [ART].” 

. We determined C.G. did not fit within the

existing “framework for establishing parentage in the absence of adoption, biology, or a

presumption attendant to marriage.” 

.

       The C.G. majority opinion spoke to the status of our case law at that time and in

the context of the specific facts of that case, but it also acknowledged the concurring

opinions (by this author and Justice Wecht) advocated for a more flexible definition of

parentage focused on the intent of the parties. The majority clarified “nothing in [its]

decision is intended to absolutely foreclose the possibility of attaining recognition as a

legal parent through other means.” 

 at 904 n.11. It held, 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.” 

 Rather, it determined

“we must await another case with different facts before we may properly consider the

invitation to expand the definition of ‘parent.’” 

 quoting 

 (Dougherty, J.,

concurring).

       As noted, this author concurred in the result, agreeing with the majority that the

issue was not then properly before us. See 

 (Dougherty, J., concurring) (it is

“unnecessary at this juncture to endorse any particular new test for establishing standing

as a parent” as the facts “preclude a holding that C.G. has standing as a parent under

any of the proffered definitions of intent-based parentage”). But this author argued the

C.G. majority offered a “cramped interpretation of ‘parent’” in light of “the diverse range




                                      [J-50-2024] - 13
of parental configurations that now exist,” and thus presented “a very real and grave risk”

of inflicting disproportionate hardship on nontraditional families, namely those of same-

sex couples. 

 (Dougherty, J., concurring). See also 

 (“Instead, I

believe there is room in our precedent — particularly in the absence of any guidance from

the legislature — to conclude an individual who lacks biological, adoptive, or marital ties

may nevertheless establish standing as a parent to seek custody under 23 Pa.C.S.

§5324(1).”).

       In his concurring opinion, Justice Wecht (joined by Justice Donohue) expressed

his view that the Court should “imagine and embrace the intent-based paradigm that ART-

related child custody disputes require.” Id. at 914 (Wecht, J., concurring). Justice Wecht

explained that Ferguson and Baby S. would have resulted in the same holding if an intent-

based principle applied rather than a contract theory. See id. at 915 (“This is unsurprising,

inasmuch as the contract evidences the intent.”). But he also predicted a contract theory

would not be helpful in all circumstances:

       [S]uppose that the members of a same-sex couple decide that one partner
       will become pregnant via ART and sperm donation; it is entirely foreseeable
       that only the partner being impregnated would contract with the ART facility.
       The second partner, who would have no biological connection to the child,
       would have no contract establishing a claim to parentage. Suppose further
       that no adoption is formalized, and that the couple separates after years in
       which both parties diligently raise and lovingly support the resulting child.
       Under the Majority’s approach, the second partner has no claim to parent
       status and no standing to pursue any custody rights. Such a result is by no
       means dictated by the terms or spirit of our custody standing statute, which
       speaks in this regard only of “[a] parent of the child”, thus begging the
       question now at hand. See 23 Pa.C.S. §5324(1). As well, such a result
       supplants the best interests analysis, eliminates the focus on the child’s
       needs, and fails entirely to comport with contemporary family realities and
       especially the circumstances of Pennsylvanians who are parenting in same-
       sex relationships.
       But, wait, you say. The second partner in the scenario imagined above
       almost certainly would enjoy standing in custody under an in loco parentis
       theory. . . . The problem is not so simple. First, if the couple separates
       shortly after (or before) the child’s birth, the second partner — who fully


                                      [J-50-2024] - 14
       intended to be a parent (and this with the first partner’s knowledge and
       consent) — will have no claim to in loco parentis standing, there having
       been insufficient time for assumption of parental status and discharge of
       parental duties. . . . Second, and more significantly, resort to an in loco
       parentis approach concedes the parentage claim, which is the very issue
       that is at bar here. The point is that the second partner in these scenarios
       should be considered a parent for purposes of standing in custody. In loco
       parentis generally is considered a species of standing sought by third
       parties.
Id. at 915-16. According to Justice Wecht, “[a]s a matter of law, a same-sex partner who

participated in the decision to bring a child into the world, to raise, to educate, to support

and to nurture that child, is no longer a third party. He or she is a parent.” Id. at 916.

Bound by the trial court’s fact-finding, however, he concurred C.G. was not a parent.

       After explaining the stage set by Ferguson, Baby S., and C.G., the en banc

Superior Court majority in the present case held Junior established parentage by three

alternative means: (1) a contract-based right; (2) equitable estoppel; and (3) intent-based

parentage. Starting with the contract-based right, the Superior Court determined the

record revealed “a sufficient basis, as evidenced by the agreements and the conduct of

the parties, to confer parentage on Junior.” Glover, 

. It observed Junior

was either referenced as a party or beneficiary in the RMA CareShare Agreement, the

Fairfax Cryobank Contract, the Doula Contract, and the Jerner Representation

Agreement. See 

. According to the Superior Court, these contracts “served

as evidence that Junior and Glover intended to collectively assume legal parentage of the

child born via [ART].” 

.

       In addition to this proven “mutual intent,” the en banc panel reasoned, the parties’

conduct established the existence of an oral contract between them. 

 It explained

“there are three elements of a contract: (1) mutual assent; (2) consideration; and (3)

sufficiently definite terms.” 

 Since the panel determined “the certified record is replete

with evidence of the parties’ mutual assent to conceive a child of their marriage using




                                      [J-50-2024] - 15
ART, bestow upon Junior legal parent status, and raise the child together as co-parents[,]”

it turned to whether the contract was supported by consideration. 

. It

explained “[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.” 

, quoting Pa. Envtl. Def.

Found. v. Commonwealth, 

, 305 (Pa. 2021). Ultimately, the court below

held the oral contract was supported by consideration because Junior paid for half of all

the expenses and shared in the emotional burdens by administering fertility injections into

Glover’s abdomen and attending medical appointments.

      The en banc panel further highlighted that “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.” 

 It explained:

      [Glover] 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.” [N.T., 5/3/22] at 65.
Id. at 915-16 (alterations to quotation supplied by Superior Court). Thus, the Superior

Court reasoned, “the certified record bears out that, in exchange for the consideration

of the shared emotional burden and equally-divided financial cost of the [ART] procedure

and birth, Glover agreed that her spouse, Junior, would possess parental rights to the

child conceived through their combined efforts.” Id. at 916 (emphasis added). The court

rejected Glover’s claims she did not knowingly and intentionally bestow legal rights upon

Junior by taking these actions, citing her Affidavit statement she wanted Junior to

“become a legal parent, with rights equal to [Glover’s] rights as a biological parent.”

Glover Aff., 12/5/2021 at ¶4 (emphasis in original).       The Superior Court therefore

recognized an enforceable oral contract between Junior and Glover concerning Junior’s

parentage.


                                     [J-50-2024] - 16
       In a footnote, the court also held that even “assuming arguendo” Junior did not

have a contract-based right to parentage, Glover was barred by the doctrine of equitable

estoppel from challenging Junior’s parentage. Glover, 

 n.10. It explained

equitable estoppel is a “doctrine of fundamental fairness” which “applies to prevent a party

from assuming a position or asserting a right to another’s disadvantage inconsistent with

a position previously taken[,]” and upon which the other party detrimentally relied. 

The Superior Court reasoned Glover repeatedly demonstrated her assent to Junior’s

parentage, and held “[t]he record bears out Junior’s detrimental reliance and endurance

of severe prejudice if Glover were permitted to deny parentage at this juncture.” 

       Lastly, the en banc panel held in the alternative it would affirm based on principles

of intent-based parentage, even if the record did not establish the three elements of a

contract. It opined this Court was unable to adopt the doctrine under the facts in C.G. but

emphasized the rationales of the concurring opinions. It further reasoned the facts of the

present case provide another opportunity to address intent-based parentage; it

specifically noted “the certified record in this appeal easily supports a finding of parentage

by intent.” 

 (reiterating the extensive facts described above that Glover and

Junior intended to conceive and raise Child together). “Stated plainly,” the Superior Court

explained, “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.” 

. “Thus,

in addition to affirming the trial court order establishing Junior’s parentage based on

contract principles,” the en banc panel “affirm[ed] it upon . . . application of the principles

of intent-based parentage that the concurring justices highlighted in C.G.” Id.10

10 Judge King authored a concurring opinion (joined by President Judge Panella and

Judge Murray), wherein she agreed Junior had a contract-based right to parentage and
that the facts of this case would “fit squarely within an ‘intent-based’ parentage approach,”
(continued…)

                                      [J-50-2024] - 17
       Glover filed a petition for allowance of appeal, and we granted review on the

following issues:

       (1) Did the Superior Court’s en banc decision conflict with the holding of the
       Supreme Court of Pennsylvania in C.G. v. J.H., 

 (2018), by
       concluding the spouse of the biological mother of a child conceived through
       Assistive Reproductive Technology, who bore no biological relationship to
       the child, had a right to parentage of the child, where no contract term
       establishing the spouse as a legal parent existed and the Superior Court
       applied “intent-based” parentage, to reach its conclusion that an oral
       contract established the spouse as a legal parent?
       (2) Should the doctrine of “intent-based” parentage be adopted in
       Pennsylvania in the context of a child conceived through Assistive
       Reproductive Technology?
       (3) Did the Superior Court err in holding the spouse of the biological parent
       of a child conceived through Assistive Reproductive Technology, who bore
       no biological relationship to the child, had a right to legal parentage of the
       child as a matter of equity under the circumstances of this case?
Glover v. Junior, 

, 815-16 (Pa. 2024) (per curiam).

                          III.   Parties’ Arguments and Discussion

       We take the above issues out of order, first reviewing the contract issue, second

the equitable estoppel issue, and finally the intent-based parentage doctrine. We review

questions of law de novo and apply a plenary scope of review. See, e.g., C.G., 

. To the extent we must consider the facts of this case, we will not disturb the trial

court’s fact findings so long as they are supported by competent evidence of record. See

In re Doe, 

 (Pa. 2011).

       A.     Oral Contract

              1.     Parties’ Arguments

       Glover argues the lower courts erred in finding an enforceable oral contract,

stressing Junior had not signed a contract clearly assuming the rights and responsibilities


but asserted “adoption of an intent-based approach is a task better left for our legislature
or Supreme Court[.]” Glover, 

 (King, J., concurring).


                                     [J-50-2024] - 18
of a parent. She acknowledges under Pennsylvania case law, ART contracts regarding

parental status are honored “to prohibit restricting a person’s reproductive options.”

Glover’s Brief at 18, quoting C.G., 

. But, Glover asserts, those

contracts are strictly construed, and their purpose is to protect gestational carriers and

donors from being legally obligated to the child born using ART. She posits the courts

enforce those contracts to promote the willingness of gestational carriers and donors to

provide those services. According to Glover, this promotes the institutions of marriage

and family, eliminates uncertainty, and reduces the likelihood of unwilling parents for

children born by ART.

       Glover argues the Superior Court erred when it found a contract existed that

conferred parental rights on Junior, and that the court’s analysis improperly centered on

the parties’ intent, which it then inserted into the existing agreements. She claims the

Superior Court ignored the plain meaning of the actual, written contracts with Fairfax,

RMA, and Jerner Law — none of which included terms granting Junior parentage — and

improperly found consideration for a contract between Glover and Junior. Glover argues

the written contracts here were not vague: they established Glover as the sole legal

parent, and under the Jerner contract, Junior would later become a legal parent only

“when and if an adoption occurred and the parties were in an intact family.” Id. at 27.

Thus, she insists Ferguson and Baby S. are inapposite, and the Superior Court was not

free to read additional terms into these unambiguous contracts based on its assumed

intent of the parties.

       In response, Junior argues the Superior Court’s holding an oral contract existed

accorded with settled precedent, including C.G. Junior stresses Pennsylvania courts

have enforced different kinds of ART contracts, including oral contracts. See Junior’s

Brief at 11-12, citing Ferguson, 

 (“The inescapable reality is that




                                    [J-50-2024] - 19
all manner of arrangements involving the donation of sperm or eggs abound in

contemporary society, many of them couched in contracts.”). In these contract cases,

Junior explains, courts routinely consider evidence of the parties’ intent. Junior claims

the purpose of applying contract principles in ART cases is not just to relieve gestational

carriers and donors of unwanted parental responsibilities, but to give effect to the parties’

intent. See id. at 13-14, citing J.F. v. D.B., 

 (Pa. Super. 2006) (holding

gestational carrier who did not originally intend to be a parent did not have standing to

bring a custody action); Baby S., 

 (parentage imposed upon mother

seeking to escape its obligations where she entered into surrogacy contract). Even in

C.G., Junior notes, the courts considered the parties’ intent when determining whether a

contract existed; the Court deferred to the trial court’s findings that the parties did not

mutually intend to conceive and raise the child together, and thus, we held the parties did

not enter into a contract. Junior avers the difference in the outcomes between this case

and C.G. lies in the factual distinctions — here, like in Ferguson, the parties formed a

legal agreement to raise Child as co-parents.

       Junior argues the Superior Court properly held all three elements of a contract

were satisfied and that Glover focuses incorrectly on the terms of the written contracts

with third parties, which for purposes of this case, serve as evidence of the more important

oral contract between the parties. Junior reiterates the Superior Court’s reasoning that

the record amply supplies evidence of an oral contract, and rebuts Glover’s argument the

lower courts’ analyses of the parties’ intent improperly incorporated intent-based

parentage principles into the contract analysis. According to Junior, an analysis of the




                                      [J-50-2024] - 20
parties’ intent is independently relevant to determining the existence of a contract, i.e., to

establish the parties’ mutual assent.11

              2.     Analysis

       To address whether the lower courts correctly determined an oral contract

established Junior’s parentage and parental rights, we must first consider the proper

standard of review. Certainly, “the interpretation of a contract is a question of law”

subject to a de novo standard of review and plenary scope of review. Vinculum, Inc. v.

Goli Technologies, LLC, 

, 242 (Pa. 2024) (emphasis added). And, as the

Superior Court recognized, we established in Ferguson that “[w]hether individuals can

enter into an enforceable agreement to determine parentage and parental rights involves

a legal question that we review de novo.” Glover, 

, citing Ferguson, 

. Here, however, the question is not whether Glover and Junior could have

entered into a contract — it is whether they did, in fact, enter into a contract.

       Accordingly, before we can review the courts’ interpretation of the supposed oral

contract, we must determine whether one even existed. Such a determination implicates

questions of fact, for which our standard of review is deferential to the factfinder. See,

e.g., City of Philadelphia, to Use of Faith v. Stewart, 

 (Pa. 1902) (“What the

parties said and what they meant by what they said was for the jury to answer. It was not



11 Amici American Academy of Matrimonial Lawyers, Pennsylvania Chapter, Academy of

Adoption & Assisted Reproduction Attorneys, and Pennsylvania Interbranch Commission
for Gender, Racial, & Ethnic Fairness agree with Junior, and emphasize the Fairfax
Cryobank contract designated Junior as a “Co-Intended Parent,” demonstrating Glover’s
intent to bestow upon Junior the terms and conditions of that agreement. Amici GLBTQ
Legal Advocates & Defenders, National Center for Lesbian Rights, ACLU, ACLU of
Pennsylvania, Family Equality, Mazzoni Center, Philadelphia Family Pride, and COLAGE
also agree, and add context that LGBTQ+ parents are often advised to do a confirmatory
adoption (even if they agree to parentage) to ensure full faith and credit of parentage in
other jurisdictions, not to establish parentage in the home state. Amicus Cordell &
Cordell, P.C., agree a contract existed.


                                      [J-50-2024] - 21
a written contract which one party maintained and the other sought to alter or contradict

as argued. It was a mixed written and oral contract, the terms of which were disputed. . .

. ‘The construction of an oral agreement belongs to the jury[.]’”) (citation omitted); Wilson

v. Lyle, 

 (Pa. 1889) (where terms of oral contract were in dispute it raised

a question for the jury); Berry v. Eastman, 

 (Pa. Super. 1944) (“The right

of a broker to a commission is a matter of contract, express or implied, but whether there

was such a contract was a question of fact to be determined by the trial judge.”). See

also Field v. Golden Triangle Broadcasting, Inc., 

 (Pa. 1973) (“when

the evidence is conflicting as to whether the parties intended that a particular writing would

constitute a complete expression of their agreement it has been held that it is a question

of fact for the trier of fact to determine whether a contract exists”).

       In contract cases, then, the fact-finder must evaluate whether the evidence

establishes facts that could meet the requisite elements of a contract.12          Here, the

Superior Court recited those elements as “(1) mutual assent; (2) consideration; and (3)

sufficiently definite terms.” Glover, 

, citing Helpin, 

. By

contrast, we have stated “[g]enerally, in order for a contract to be formed, there must be

three requisite elements: an offer, acceptance, and consideration.” Estate of Caruso v.

Caruso, 

, 896 (Pa. 2024), citing Muhammad v. Strassburger, McKenna,

Messer, Shilobod & Gutnick, 

 (Pa. 1991). See also Farren v.

McNulty, 

 (Pa. 1923) (“It is a requisite of every contract that there must

be an offer and acceptance”). These two different articulations of the requirements of a

contract are not necessarily incompatible — Pennsylvania courts have explained that

“[t]he principle that a contract is not binding unless there is an offer and an acceptance is


12 Of course, once those facts are found, it becomes a question of law whether they satisfy

the requisite legal elements.


                                       [J-50-2024] - 22
to ensure that there will be mutual assent.” Hahnemann Med. College & Hosp. of Phila.

v. Hubbard, 

 (Pa. Super. 1979), citing Farren, 

. But

certainly, the Superior Court’s articulation of the elements as requiring “mutual assent”

cannot gut the requirements for an offer and an acceptance. General acquiescence to a

course of conduct is not sufficient “mutual assent” to establish an oral contract; the parties

must each know the terms of the contract and they must both assent to those terms, i.e.,

there must be an “offer” and an “acceptance” as defined by our common law contract

principles. See, e.g., Essner v. Shoemaker, 

 (Pa. 1958) (“before

preliminary negotiations ripen into contractual obligations, there must be manifested

mutual assent to the terms of a bargain”).

        Also relevant, we review the concept of contractual consideration.         We have

explained “[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.” Stelmack v. Glen Alden Coal Co.,

 (Pa. 1940) (citation omitted). We elaborated in Stelmack that “[t]he

terms ‘benefit’ and ‘detriment’ are used in a technical sense in the definition, and have no

necessary reference to material advantage or disadvantage to the parties.” 

 We

continued: “[i]t is not enough, however, that the promisee has suffered a legal detriment

at the request of the promisor. The detriment incurred must be the ‘quid pro quo’, or

the ‘price’ of the promise, and the inducement for which it was made. ‘Consideration

must actually be bargained for as the exchange for the promise.’” 

, quoting

Restatement Contracts §75 cmt. b (emphasis added). Thus, detriment alone does not

establish consideration. See id. (distinguishing how detriment can be given gratuitously

as a gift).

        Mindful of these standards, we hold the lower courts erred in holding there was an

oral contract in this case. In its Rule 1925(a) opinion, the trial court found a binding




                                      [J-50-2024] - 23
agreement existed between the parties, but in explaining its rationale, addressed only the

parties’ shared intent:

       In the instant matter, it is undisputed that the parties, a married couple,
       mutually agreed to utilize IVF for the purpose of having a child together.
       The parties jointly consulted with and executed contracts with a fertility clinic
       (RMA), a sperm bank (Fairfax Cryobank) and later a doula in preparation
       for childbirth. The Care Share contract signed by the parties with RMA
       identifies them as “Patient” and “Partner”, while the contract with Fairfax
       Cryobank identifies them as “Intended Parent” and “Co-Intended Parent”.
       Additionally, both Glover and Junior signed affidavits which memorialized
       their joint intent to have Junior adopt the child “in order to provide this child
       with the legal stability of two parents”, intent for Junior to “become a legal
       parent, with rights equal to” Glover’s, and the intent for Junior to have
       custodial rights and a child support obligation should the parties separate
       (N.T. at 31-35; See also, Exhibit “K”).
       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 Child through the use of [ART].
Trial Court Op. at 9-10. The trial court did not find any specific facts establishing an offer,

acceptance, or consideration between Glover and Junior.

       The en banc Superior Court similarly erred. Its first misstep was defining the

contract issue as a pure legal question subject to a de novo standard and plenary scope

of review. See Glover, 

. It then viewed the record anew through that

broad lens to find facts supporting the essential elements of a contract, which it defined

as “(1) mutual assent; (2) consideration; and (3) sufficiently definite terms.” 

.

See also 

 (“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.”).

       However, the Superior Court did properly affirm the trial court’s finding the parties

mutually intended to conceive and raise a child together based on the extensive evidence,

including the various written contracts and statements indicating the expectation Junior



                                      [J-50-2024] - 24
would be a parent. To be clear, we take no issue with that portion of its analysis, and

agree the record abounds with evidence of the parties’ shared intent. But, the Superior

Court incorrectly used the fact of the parties’ shared intent alone to satisfy the “mutual

assent” element for an oral contract. See 

 (“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”),

citing Trial Court Op. at 9-10. Like the trial court, the Superior Court did not point to any

fact establishing an offer or an acceptance of specific terms of an oral contract for shared

parentage between Glover and Junior.

       The Superior Court’s next error was in its analysis of consideration. Initially, it

defined consideration “as a benefit to the party promising, or a loss or detriment to the

party to whom the promise is made.” 

, quoting Pa. Envtl. Def. Found., 255 A.3d

at 305. It then determined Junior gave consideration to Glover based on testimony that:

(1) “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[,]” id., citing N.T. 5/3/2022, at 17, 44; and (2) “Junior also described the shared

emotional role,” including that Junior administered daily fertility injections into Glover’s

abdomen for three months and attended doctors’ appointments, id. The Superior Court

then dove further into the hearing transcript to find “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. It observed:

       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.”



                                      [J-50-2024] - 25
Id. at 915-16 (alteration supplied by Superior Court), quoting N.T. 5/3/2022, at 65. From

that portion of the transcript, the Superior Court determined: “[h]ence, 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.” Id. (emphasis added). Beside the point that the Superior

Court essentially reached this finding of fact on its own (presumably using its self-declared

plenary scope of review), its determination is questionable.

       A closer look at Glover’s statement at the hearing reveals the Superior Court’s

quotation lacks important context. The relevant exchange began with a discussion of the

various written agreements, during which Glover testified she did not believe they would

be binding to establish Junior’s parentage. See N.T. 5/3/2022, at 64. Her counsel then

asked: “Did you feel like you had any options within the sperm bank or with the fertility

clinic, if you didn’t sign those documents, to be able to move forward with the process?”

Id.   Glover responded affirmatively, and then clarified: “we could’ve moved forward

without the program. I could’ve moved forward without having to do the CareShare

program.” Id. at 65. Counsel asked: “But you decided to do CareShare just to make sure

you were getting — ” to which Glover responded, “Financially . . . it was the best decision.”

Id. It is apparent from this context Glover was discussing how the CareShare program

— which “allows for the possibility of multiple IVF cycles for a single fee and, under certain

circumstances, provides a refund” — provided the most cost-effective means for the

parties to conceive. RMA CareShare Agreement at 1. It is a reach to derive from this

testimony that Glover entered into the CareShare program in exchange for the

establishment of Junior’s parentage. And while Junior certainly suffered the detriments




                                      [J-50-2024] - 26
noted by the courts below, the trial court never found as fact that those detriments were

part of a bargained-for exchange in order to establish shared parentage.

       Despite finding the existence of an oral contract, the en banc Superior Court did

not point to any evidence of a conversation between Glover and Junior where one party

offered the deal (that Junior would support Glover financially and emotionally with

conception and pregnancy and in exchange would have parental rights with respect to

Child) and the other party accepted it.        We do not fault the lower courts for this

shortcoming, however, because it is entirely likely such a conversation never occurred.

Common experience teaches that when married couples decide to have a baby together,

whether by ART or not, they typically do not enter into contracts with each other. The

same goes for the lack of evidence of consideration in this case; while couples who have

a child together generally share the financial and emotional burdens, they do not do so

as a bargained-for exchange for parentage and parental rights. A couple’s decision to

have a baby together is often profoundly intimate and may not be so easily reduced to a

transaction.13

       Operating within the existing framework established by our precedent, the lower

courts (understandably) attempted to fit the facts of this case into the confines of contract

law. But the present matter is inapposite to scenarios where parties conceive using

13 We note the parties do not argue and the lower courts did not analyze whether a

contract implied in fact existed. Although contracts implied in fact account for situations
where parties did not communicate the terms of the contract expressly, such contracts
must still be supported by consideration. See, e.g., Liss & Marion, P.C. v. Recordex
Acquisition Corp., 

 (Pa. 2009) (“A contract implied in fact is an actual
contract which arises where the parties agree upon the obligations to be incurred, but
their intention, instead of being expressed in words, is inferred from acts in the light of the
surrounding circumstances.”) (citation omitted); Thomas v. R.J. Reynolds Tobacco Co.,

 (Pa. 1944) (“The consideration necessary to establish a valid contract,
express or implied in fact, must be an act, a forbearance, or a return promise, bargained
for and given in exchange for the promise.”). Our holding here does not affect our case
law on implied contracts.


                                      [J-50-2024] - 27
gamete donation or gestational carriers, which are more transactional in nature and thus

more easily amenable to analysis using the legal elements of contract. See Ferguson,

; Baby S., 

. Although the lower courts ably

concluded the parties shared a mutual intent that Junior would be a parent to Child,

contract law simply does not account for the situation. We therefore reverse the lower

courts’ holdings that Junior established parentage through a contract.15

14 In Ferguson, we explained the parties made clear their “mutual intention to preserve all

of the trappings of a conventional sperm donation,” thereby eliminating the sperm donor’s
parentage. We described how:
       the parties could have done little more than they did to imbue the
       transaction with the hallmarks of institutional, non-sexual conception by
       sperm donation and IVF. They negotiated an agreement outside the
       context of a romantic relationship; they agreed to terms; they sought
       clinical assistance to effectuate IVF and implantation of the consequent
       embryos, taking sexual intercourse out of the equation; they attempted to
       hide [s]perm [d]onor’s paternity from medical personnel, friends, and
       family; and for approximately five years following the birth of the twins both
       parties behaved in every regard consistently with the intentions they
       expressed at the outset of their arrangement, [s]perm [d]onor not seeking
       to serve as a father to the twins, and [m]other not demanding his support,
       financial or otherwise.
Ferguson, 

 (footnote omitted) (emphasis added). The facts of this case
are, as explained, not a direct analogue to the sperm donation context. But it is striking
to contrast the facts considered by the Ferguson Court to determine the sperm donor was
not a parent. Here, the decision to conceive was made inside the context of a romantic
relationship, Junior’s identity as an intended parent was publicized to friends, family, and
medical personnel, and Junior did seek to serve as a parent. This further undergirds our
determination Junior’s and Glover’s joint decision to have a child was not a “transaction,”
it was far more akin to the decision to conceive a child naturally.
15 We briefly note that we also reject Glover’s argument the Jerner contract/affidavit reflect

a binding agreement that Junior would become a parent only upon adoption and only if
the parties remained married. While the affidavits stated they “intend[ed] to remain a
committed couple[,]” this documentation of the parties’ intentions did not condition
Junior’s parentage on an intact marriage. Glover Aff., 12/5/2021; Junior Aff., 12/5/2021.
In fact, the affidavits contemplated what would happen if the parties were to split up in the
future: “I understand that this means [Junior] will have custody rights and child support
obligations to this child if we ever separate in the future[,]” and “[i]n the event of future
litigation between me and [Junior], I consent to the release of this Affidavit to [Junior].” 

                                       [J-50-2024] - 28
       B.     Equitable Estoppel

              1.     Parties’ Arguments

       Glover argues the Superior Court exceeded its role by looking beyond the trial

court’s contract determination to hold in the alternative that relief was warranted under

equitable estoppel principles. She argues the cases the Superior Court relied on were

inapt: L.S.K. v. H.A.N. involved a situation where a person sought and obtained a court

order for custody but tried to deny the duty of support. See 

 (Pa. Super.

2002). And, in C.T.D. v. N.E.E., the Superior Court remanded for a determination of

whether a putative father abandoned his potential paternal responsibilities by waiting

almost two years to try to establish paternity. See 

 (Pa. Super. 1995). Glover

argues C.T.D. weighs in her favor, as she claims Junior abandoned the marriage and

Child after conception. Alternatively, Glover claims, the Superior Court did not support

its finding of Junior’s reasonable reliance, and that equity could easily be applied the

opposite way to preclude Junior from claiming parentage.           Lastly, Glover argues,

equitable estoppel doctrines in the context of parenting and custody are based in the

preservation of intact marriages; here, there is no intact marriage to protect.

       In reply, Junior argues the Superior Court correctly applied equitable principles to

hold Junior is a parent, in line with C.T.D. and L.S.K. Junior adds that under “principles

of estoppel, ‘a person might be estopped from challenging paternity where that person

has by his or her conduct accepted a given person as the [parent] of the child.’” Junior’s

Brief at 35, quoting Brinkley, 

. Junior asserts the “record is replete with

examples of Glover’s conduct accepting Junior as parent of the child.” Id. at 35-36

(including the joint actions of the parties of conceiving Child and preparing for Child’s

arrival by, e.g., picking out a name, taking pregnancy classes, announcing the pregnancy

to family and friends, creating a registry, and making a co-parenting plan). According to




                                     [J-50-2024] - 29
Junior, the record also demonstrates Junior’s detrimental reliance and prejudice if Glover

were allowed to deny parentage now; Junior paid for half of the expenses, entered the

various contracts, and took on emotional burdens. See id. at 36-37.16

              2.     Analysis

       Two equitable doctrines predominate in our law on parentage: the presumption of

paternity/parentage and paternity/parentage by estoppel.17 All agree the presumption of

parentage does not apply here because the parties’ marriage is no longer intact, and

“[w]hen there is no longer an intact family or a marriage to preserve, then the presumption

. . . is not applicable.” Glover, 

, quoting Vargo v. Schwartz, 

 (Pa. Super. 2007). The Superior Court’s cursory conclusion Glover was equitably

estopped from challenging Junior’s parentage appears to have been grounded in broad



16  Amici American Academy of Matrimonial Lawyers et al. supplement with specific
actions Glover took on which Junior detrimentally relied, including Glover’s acceptance
of financial and emotional support, Glover’s agreement to use specific sperm based on
the donor’s commonalities with Junior, and Glover’s affidavit stating she wanted Junior to
be a legal parent. Amici GLBTQ Legal Advocates & Defenders et al. agree estoppel
should bar Glover from contesting Junior’s parentage and add that although the marital
presumption has been limited to cases where the goal is to preserve an intact marriage,
it also serves to protect children’s parentage. Those amici remind the Court that in
Obergefell v. Hodges, 

 (2015), the United States Supreme Court recognized
that the profound commitment of marriage plays a vital role in safeguarding children, and
they ask the Court to revisit the limit on the marital presumption in this case where, without
Junior’s parentage, Child will not have a second parent. Amicus Cordell & Cordell, P.C.
also agrees with Junior, adding that the family court is a court of equity and Pennsylvania
has long applied equitable principles to determine parentage for the purpose of protecting
children from harm and trauma.
17 We note the Superior Court has applied the presumption of paternity to         same-sex
couples. See Int. of A.M., 

 (“We . . . have no difficulty in holding that the
presumption of paternity is equally as applicable to same-sex marriages as it is to
opposite-sex marriages.”). Because we do not dispose of this case on these equitable
grounds, we need not decide whether the presumption of paternity or paternity by
estoppel can apply under these circumstances. We do, however, recognize the broader
terms “parentage by estoppel” and “presumption of parentage” are better suited to cases
like this one, and use them in this opinion as necessary.


                                      [J-50-2024] - 30
principles of equitable estoppel.    Importantly, however, we have held “paternity by

estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown,

on a developed record, that it is in the best interests of the involved child.” K.E.M. v.

P.C.S., 

 (Pa. 2012). Here, the lower courts did not perform a best

interests analysis, or address K.E.M. at all. They certainly did not evaluate whether, in

light of K.E.M., a best interests analysis is necessary when determining parentage under

an estoppel theory in these circumstances.

       We observe, however, that a best interests analysis (as contemplated by the Court

in the context of paternity by estoppel) would be difficult to engage in here, since this

litigation commenced before Child was even born. See 

 (in discussing best

interests, noting the relevance of the child’s closeness with the challenged parent and

whether harm would befall the child if parental status were to be undone). Junior has not

had the opportunity to build a relationship with Child. Thus, as with the contract-based

analysis supra, the present situation does not fit neatly within the estoppel box. Although

we do not foreclose the possibility that estoppel principles could apply more flexibly to

establish parentage than our precedent currently reflects — indeed, these equitable

principles inform our intent-based parentage analysis below — we cannot affirm the

Superior Court’s alternate holding given its fleeting discussion of equitable estoppel. We

proceed to the final question of intent-based parentage.

       C.     Intent-based Parentage

              1.     Parties’ Arguments

       According to Glover, “[t]his Court in C.G. made clear that it does not stand for the

proposition that parentage can be established merely by intent in the setting of [ART] in

the absence of specific contract provisions outlining the responsibilities and legal

obligations of the non-related third party.” Glover’s Brief at 24. She claims intent was not




                                     [J-50-2024] - 31
the focus of Ferguson or Baby S. because the parties in those cases formed “clear binding

agreements with terms that left no doubt as to the rights and responsibilities of the

parties.” Id. at 25. She posits the Superior Court exceeded its authority when it reached

its intent-based parentage holding, claiming its scope was limited to correcting errors

regarding the trial court’s determination a contract existed. Moreover, Glover argues, the

lower courts focused on the wrong time period when finding mutual intent that Junior

would be a parent. Glover claims that instead of focusing on the time around conception,

the court should have considered Junior’s conduct later in the pregnancy (when Junior

moved into the basement, left for the West Coast for several months, then moved out of

the marital residence). Glover argues the facts of this case are akin to C.G., where the

courts held the parties did not mutually intend to have and raise the child together. She

claims the Superior Court ignored C.G. by using an intent-based approach.

       Glover further contends the Court should refrain from adopting a doctrine of intent-

based parentage, claiming it “is a slippery slope by which the role of parent would be

potentially subjected to result-oriented applications.” Id. at 38. Especially in cases like

this one where the child was not yet born, Glover claims, the doctrine fails to protect the

best interests of the child.   She argues this area of the law requires certainty and

consistency, and a nebulous intent-based standard will require case-by-case

determinations, resulting in chaos, protracted litigation, and uncertainty for the children.

       Junior responds that the Superior Court’s examination of intent-based parentage

does not conflict with C.G. Junior frames the lower court’s opinion as “based on contract

principles, referring to intent-based parentage only as a secondary reason[.]” Junior’s

Brief at 22-23. Nevertheless, Junior argues, the Court in C.G. did not “reject” intent-based

parentage across the board, and this case is distinguishable on its facts. Id. at 23-24.

Junior urges us to adopt an intent-based parentage doctrine for children conceived




                                      [J-50-2024] - 32
through ART, noting “this case fits squarely in the situation anticipated by . . . C.G.” Id.

at 24.     Junior highlights the discussions of intent-based parentage in the C.G.

concurrences, citing Justice Wecht’s observation that in most cases, an intent-based

analysis would reach the same result as a contract-based analysis, while providing refuge

in circumstances where the specific requirements of contract could not be met. See id.

at 26 (reciting Justice Wecht’s hypothetical as nearly identical to this case). Junior

concludes “it is time to expand the determination of parentage and adopt an intent-based

approach” to fully recognize families created through alternative means. Id.

         Junior avers this case is the perfect opportunity to adopt the doctrine of intent-

based parentage. Junior recaps Glover’s continuous representations of her intent to co-

parent with Junior even after the parties separated, the references to Junior as “Co-

Intended Parent” and “Partner” in the written contracts, the various decisions the parties

made together regarding the conception and raising of Child, and the fact Junior acted

like a parent. Junior agrees with the Superior Court that “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.” Id. at 28, quoting Glover, 

.

         Junior rebuffs Glover’s arguments that intent-based parentage would create a

“slippery slope” or lead to “chaos,” explaining under Glover’s view of the law, the pregnant

parent would have complete control and could unilaterally strip the other of their parental

rights, leaving the child with only one parent, contrary to public policy. Id. at 29-30. Junior

asserts such a result would be “tragically unjust” for both the parent and child and would

be “shocking in an opposite-sex marriage.” Id. at 30. Junior then proposes a two-step

standard for finding intent-based parentage: First, the court would ask if the parties are

married and were married while they undertook ART. If so, Junior believes there should




                                      [J-50-2024] - 33
be a rebuttable presumption that both parties intended to be the parents. Second, Junior

continues, if the parties are not married, the court should ask whether there is proof of

intent for the non-carrying party to serve as the other parent, which can be proved by

evidence of (a) significant participation during the ART process (e.g., attending doctors’

appointments, signing contracts, giving injections, financially contributing); and (b) how

the parties held themselves out to family, friends, and the public regarding the upcoming

birth of the child (i.e., whether they acted like they were having a baby together).

According to Junior, such a “clear, reasonable standard” would protect against the

situation at hand, where Child has been deprived of Junior’s love and care, and Junior

has been denied the ability to parent and know Child. Id. at 34.18

       Amici American Academy of Matrimonial Lawyers, Pennsylvania Chapter et al.

provide the Court with additional, exceptionally helpful arguments supporting the adoption

of intent-based parentage. They first argue the doctrine would fill a significant gap in our

law. Amici explain that our existing precedent allows “parentage for standing purposes

[to] be proven in only four ways: biology, adoption, a presumption attendant to marriage,

or ‘legal parentage by contract [in ART cases].’” Amici Brief of Am. Acad. of Matrimonial

Lawyers et al. at 6-7, quoting C.G., 

 (Dougherty, J., concurring). But they


18 Amicus Cordell & Cordell, P.C. argues for a similar two-step analysis:


       First, a marital presumption: if the parties are married during ART
       procedures, and at the time the child was conceived via ART, both parties
       are presumed to be the parents of the resultant child. Second, if the marital
       presumption does not apply, the party claiming parentage by intent must
       provide clear and convincing evidence demonstrating both a mutual intent
       to conceive and raise the child (such as communications between the
       parties, how they held themselves out, documents they executed, etc.) as
       well as joint participation in the process of creating new life (such as the
       party’s name listed on paperwork, assistance for hormone injections,
       attendance at and/or payment for related medical services, etc.).
Amicus Brief of Cordell & Cordell, P.C. at 23-24.


                                     [J-50-2024] - 34
note the C.G. majority recognized the possibility of future expansion of the meaning of

“parent,” and they argue that even these four categories represent a significant expansion

of the term as it was understood at the end of the last century. See id. at 7-11 (describing

how the courts’ development of parentage by contract, and the Superior Court’s

expansion of the presumption of parentage to the ART context, including for same-sex

married couples,19 moved the law forward).

       Amici explain, however, these doctrinal developments are still too narrow to cover

all families who conceive through ART. They observe that express contracts regarding

parental rights typically occur in only two contexts: gamete donation and surrogacy. “But

there is little perceived need for two intended parents to enter into a written contract with

each other to provide that the non-biological parent will have parental rights.” Id. at 11

(emphasis in original). And while the marital presumption could apply if the parties were

married, amici explain it would not apply if the marriage dissolves before an action is filed

challenging the non-biological parent’s status (as in this case). To fill this gap, amici ask

the Court to adopt an intent-based standard for determining parentage, “under which

Pennsylvania courts probe the intent of the person undergoing ART and their partner,

and to ask whether, at the time of the conception, that couple intended to bring a child

into the world together and to serve as co-parents to that child.” Id. at 13. They assert

the courts should be permitted to look at evidence from all relevant time periods (including

conception, pregnancy, or after birth if applicable), and make factual determinations on a

case-by-case basis. According to amici, intent-based parentage is a logical continuation

of our ART jurisprudence. They explain the existing doctrines (especially the contract-




19 See Int. of A.M., 

.




                                      [J-50-2024] - 35
based approach) already aim to capture the parties’ intent, but they do so imperfectly in

certain situations.20

       Next, amici argue an intent-based parentage doctrine would best serve the

Commonwealth’s public policies. First, they explain the Commonwealth aims to protect

the stability of children’s family lives. See id. at 15-16, citing 23 Pa.C.S. §5328(a)(4)

(custody court should consider “[t]he need for stability and continuity in the child’s

education, family life and community life”).     Amici elaborate that to serve that aim,

Pennsylvania law (1) limits instances where a single-parent family is created, and (2)

facilitates the addition of a parent so a child has two parents. See id. at 16-18.21 Second,

they argue it is the Commonwealth’s policy to recognize Pennsylvanians may exercise a

diverse range of parental configurations without undue intrusion from the courts. See id.

at 19, citing 23 Pa.C.S. §2312 (“Any individual may become an adopting parent.”);

Ferguson, 

 (recognizing a single-parent family where it was mindfully

created). Third, amici argue a prevalent common law policy is to encourage predictability

of legal outcomes. Amici believe intent-based parentage would support all three policy


20 Amici Philadelphia Bar Association, Pennsylvania Bar Association, and Allegheny
County Bar Association agree that a gap exists in Pennsylvania law, which creates
uncertainty for families. They recognize there is currently pending legislation in the
General Assembly to adopt the Uniform Parentage Act (and thus recognize intent-based
parentage). But amici nonetheless urge the Court to adopt a common law intent-based
parentage doctrine in this case, reasoning the question is too urgent to await legislative
action.
21  Amici explain the Adoption Act does not permit a parent to move to involuntarily
terminate the other parent’s parental rights without another person willing and available
to adopt the child, see Amici Brief of Am. Academy of Matrimonial Lawyers et al. at 16
(citing, e.g., 23 Pa.C.S. §2512(b)); the Adoption Act permits stepparent and second-
parent adoptions, see id. at 17 (citing, 23 Pa.C.S. §2903; In re Adoption of R.B.F., 

 (Pa. 2002)); and the courts that have refused to apply the marital
presumption in cases of marital breakdown have done so with the intention a person other
than the husband will be identified as the child’s father, not to strip the child of a second
parent, see 

 at 18 (citing, e.g., Minnich v. Rivera, 

 (Pa. 1986)).


                                      [J-50-2024] - 36
goals by: establishing parentage for those who, in their own view, are best positioned to

care for a child; ensuring children born by ART are not disadvantaged relative to children

born in non-ART situations when a marriage is irretrievably broken (noting in the ART

context, there is no other substitute parent); thwarting the use of parentage proceedings

by an embittered party to a breakup; and fostering predictable outcomes, especially for

lay-parents who would not need to understand the complexities of contract law to know

where they stand (thereby discouraging protracted, exploitative litigation over ambiguous

contracts).

       Finally, amici observe intent-based parentage is a settled doctrine used by other

states in their common law and in the Uniform Parentage Act (UPA), and Pennsylvania

would not be an outlier by adopting it. Amici urge the Court to join the growing ranks of

states that use intent-based parentage, and argue this is the perfect case to do so. Amici

GLBTQ Legal Advocates & Defenders et al. supplement this point with more statistics

from other jurisdictions. They explain it is “the overwhelming consensus across the

states” that “mutual consent to [ART] leads to conclusive legal parentage.” Amici Brief of

GLBTQ Legal Advocates & Defenders et al. at 13-14. They identify certain cases from

other jurisdictions applying intent-based reasoning (discussed further infra) and assert

many states have enacted intent-based parentage statutes. See 

 at 14 n.7 (arguing

sixteen states have intent-based parentage provisions, and nineteen have ART

parentage provisions), citing Courtney G. Joslin et al., Lesbian, Gay, Bisexual &

Transgender Family Law §3:3 (2018).22


22 Amici further explain the UPA provisions have evolved to establish parentage in the

context of ART, first applying to consenting spouses, then protecting nonmarital children
born through ART and expanding the ways consent can be established, as well as
updating provisions with gender-neutral language to make clear they apply to children
born to LGBTQ+ parents who use ART. See Amici Brief of GLBTQ Legal Advocates &
Defenders et al. at 14-16.


                                    [J-50-2024] - 37
              2.     Analysis

       After considering the thorough advocacy described above, we adopt a doctrine of

intent-based parentage, not out of whole cloth, but as an extension of our existing

parentage jurisprudence.     As we explained in C.G., our precedent up to this point

recognizes parentage through four paths: biology, adoption, equity (i.e., parentage by a

marital presumption or estoppel), or by contract where the child is born using ART. See

C.G., 

. But in C.G., we acknowledged “the reality of the evolving concept

of what comprises a family cannot be overlooked.” 

, citing J.A.L. v. E.P.H., 

 (Pa. Super. 1996) (“increased . . . changes in social mores and increased

individual freedom have created a wide spectrum of arrangements, filling the role of the

traditional nuclear family”). In conformity with that observation, we made clear “nothing

in [the Court’s] decision is intended to absolutely foreclose the possibility of attaining

recognition as a legal parent through other means.” 

 at 904 n.11. Thus, while an intent-

based analysis did not suit the facts in C.G., our decision there did not preclude intent-

based parentage in Pennsylvania. See 

 (“we must await another case with different

facts before we may properly consider the invitation to expand the definition of ‘parent’”),

quoting id. at 913 (Dougherty, J., concurring). We are now presented with the appropriate

opportunity to apply these principles.

       As illustrated, none of the four paths to parentage recognized in C.G. account for

the factual scenario in this case. Junior does not share genetics with and did not gestate

Child, so there is no biological relationship. Junior’s relationship with Glover broke down

and this litigation commenced before Child was born, so there was no opportunity to

adopt. Likewise, the presumption of parentage attendant to marriage applies only to

intact marriages, so Junior could not establish parentage through the marital presumption.

And application of parentage by estoppel is problematic in this case since our precedent




                                     [J-50-2024] - 38
requires a best interests analysis, and Junior has been prevented from forming a

relationship with Child. Finally, contract principles are inapt because married couples

generally do not engage in a transaction involving offer, acceptance, and consideration

when deciding to have children. Nonetheless, we are presented with a situation where a

formerly married couple endeavored — while still married — to conceive and raise a child

together, and they invested many months and significant financial, emotional, and

physical resources to jointly bring a child into the world. Indeed, this case is a near-exact

materialization of Justice Wecht’s prescient hypothetical in C.G.        See id. at 915-16

(imagining a same-sex couple who used ART to conceive, where the non-biological

parent lacks a contract establishing parentage, the parties separate before an adoption

is formalized, and even third-party in loco parentis standing cannot be established

because the parties separated before or shortly after birth).

       To determine whether parentage in such situations accords with our current law, it

is helpful to consider what our law concerning legal parentage aims to accomplish in the

first place. Foremost, Pennsylvania law plainly seeks to protect children. Cf. C.G., 

 (“The paramount concern in child custody cases is the best interests of the

child.”). In K.E.M., for example, when discussing paternity by estoppel, we adopted the

stance that “the law cannot permit a party to renounce even an assumed duty of

parentage when by doing so, the innocent child would be victimized[,]” and took into

account whether the child would “be denied the love, affection and support” of a parent.

, quoting Commonwealth ex rel. Gonzalez v. Andreas, 

 (Pa. Super. 1976); see also id. at 808-09 (“we are of the firm belief — in terms of

common law decision making — [the best interest of the child] remains the proper,

overarching litmus, at least in the wider range of cases. . . . The legal determination of

parentage is a hollow one where the accoutrements do not inure to a child’s benefit.”).




                                      [J-50-2024] - 39
       In furtherance of that goal, we have emphasized the importance of love and

stability for the child. See, e.g., Int. of K.T., 

, 1106 (Pa. 2023) (in the context

of termination proceedings, statutory considerations of emotional needs and welfare

include “intangibles such as love, comfort, security, and stability”), quoting In re T.S.M.,

 (Pa. 2013); see also K.E.M., 

 (“The legal fictions

perpetuated through the years . . . retain their greatest force where there is truly an intact

family attempting to defend itself against third-party intervention.”). And, of course, our

law aims to protect children by providing private sources of financial support. See, e.g.,

Knorr v. Knorr, 

 (Pa. 1991) (Parents’ “right to bargain for themselves is

their own business. They cannot in that process set a standard that will leave their

children short. . . . When [their bargain] gives less than required or less than can be given

to provide for the best interest of the children, it falls under the jurisdiction of the court’s

wide and necessary powers to provide for that best interest.”).

       On the other hand, legal parentage also serves the rights of parents themselves.

“The liberty interest . . . of parents in the care, custody, and control of their children []is

perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel

v. Granville, 

 (2000); see also Pierce v. Soc’y of Sisters, 

 (1925) (“liberty of parents and guardians” includes “direct[ing] the upbringing and

education of children under their control”).        Recently, in Caldwell v. Jaurigue, we

considered what it means to be a “parent” for purposes of the child support statute in 23

Pa.C.S. §4321(2). See 

 (Pa. 2024). In that case, a deceased mother’s

paramour had formed a close, step-parent-like relationship with her child, and he sought

and obtained partial physical custody after the mother’s death, while the child’s biological

father shared physical custody and retained full legal custody. The father brought a

support action against the paramour, relying on a case, A.S. v. I.S., 

 (Pa.




                                       [J-50-2024] - 40
2015), where we held an ex-step-father owed a duty to support where he “litigated and

obtained full legal and physical custody rights . . . [and] ha[d] insisted upon and bec[o]me

a full parent in every sense of that concept.” Id. at 1267, quoting A.S., 

.

Analyzing relevant statutes, dictionary definitions, and case law, we held the paramour

was not a “parent” for purposes of a support obligation under Section 4321(2) because

he did not have legal custody of the child, even though he was awarded substantial

physical custody. We explained that without legal custody — i.e., “[t]he right to make

major decisions on behalf of the child, including, but not limited to, medical, religious and

educational decisions[,]” 23 Pa.C.S. §5322 — the paramour did not have all the rights

and corresponding obligations of parentage. Id. at 1273-74. We held “without the power

to decide the monumental facets of a child’s life such as their medical treatment, religion,

or course of education, the non-parent’s role is plainly subordinate to that of a parent.”

Id. at 1275. Thus, Pennsylvania law primarily aims to protect the interests of children,

and accordingly recognizes parentage encompasses duties and obligations as well as

privileges.23


23 As explained by amici American Academy of Matrimonial Lawyers et al., our law
furthers these broad interests (and others) in various ways. Amici are correct that while
our law respects single-parent households, see, e.g., 

 there are quite a
few instances where the law acts to promote two legal parents as a means of providing
stability and more support for the child. See, e.g., 23 Pa.C.S. §2512(b) (requiring a parent
moving to involuntarily terminate the other parent’s parental rights to aver they will
assume custody of the child until the child is adopted); In re Adoption of M.R.D., 

 (Pa. 2016) (“petitioning parent must demonstrate that an adoption of the child
is anticipated in order for the termination petition to be cognizable”); 23 Pa.C.S. §2903
(permitting second parent adoption by spouse without requiring recognized parent to
terminate their parental status); In re Adoption of R.B.F., 

 (allowing
second-parent adoption among non-spouses in some situations where section 2903 is
inapplicable). Amici are likewise correct our law aims to encourage predictable outcomes
and account for even non-traditional family formations and structures. See, e.g., C.G.,

 (“cognizant of the increased availability of reproductive technologies to
assist in the conception and birth of children, the courts are recognizing that
arrangements . . . may differ and thus should be treated differently than a situation where
(continued…)

                                      [J-50-2024] - 41
       An intent-based parentage analysis in ART cases would not conflict with these

public policies; indeed, it would further them. In terms of stability and support, intent-

based parentage in the ART context could provide a second source of love, care, and

support — both emotional and financial. Unlike in estoppel cases, in the ART context,

there is typically no second biological parent since a gamete donor would have contracted

away parental rights. And it is apparent that in some ways, parents who conceive using

ART essentially demonstrate their stability and dedication to a child by going through a

more rigorous, time consuming, and expensive process to conceive a child than do many

parents who conceive through sexual intercourse. At the same time, it is difficult to see

how intent-based parentage would undermine more “naturally” derived parental rights.

Parental rights are legally shared in the most ordinary circumstances of conception; in

this more unusual context, the biological parent cannot reasonably expect to have sole

parental rights when she and her partner plan to conceive and co-parent a child, and work

together to bring that child into the world using ART. As we explained in Caldwell (albeit

in the context of the support statute), parentage involves “the power to decide the

monumental facets of a child’s life such as their medical treatment, religion, or course of

education.” 315 A.3d at 1275. Certainly, one of the most monumental decisions a parent

can make for their child is whether to conceive them in the first place.

       Thus, an intent-based analysis aligns with the purposes of establishing parentage

that pervade our law. And as demonstrated, cases like this one slip through the cracks




a child is the result of a sexual encounter”); J.A.L., 

 (“In today’s society,
where increased mobility, changes in social mores and increased individual freedom have
created a wide spectrum of arrangements filling the role of the traditional nuclear family,
flexibility in the application of standing principles is required in order to adapt those
principles to the interests of each particular child.”).


                                      [J-50-2024] - 42
that separate the four paths to parentage named in C.G.24 See Douglas NeJaime, The

Nature of Parenthood, 126 YALE L.J. 2260, 2289 (2017) (“[E]ven as principles of gender

and sexual-orientation equality have animated shifts in parental recognition, parentage

law continues to draw distinctions that carry forward legacies of inequality embedded in

frameworks forged in earlier eras.”). It is time our precedent evolves to fill in the gap.

       Addressing similar issues, courts in other jurisdictions have used intent-based

considerations when determining parentage.          In Sinnott v. Peck, for example, the

Supreme Court of Vermont considered a family court’s dismissal of a plaintiff’s petition to

establish parentage of two children legally adopted by her same-sex domestic partner.

See 

 (Vt. 2017). It affirmed the dismissal as to the older child the

defendant partner adopted before the parties’ relationship began, but reversed as to the

younger child the couple decided to adopt and raise together during the course of their

relationship. See 

 (explaining the adoption agency did not allow same-sex

adoptions, so only defendant legally adopted the child). The Vermont court explained its

“past decisions with respect to the definition of ‘parent,’ and access to the rights and

responsibilities that come from that status, have created a legal framework in which

parental status is viewed in the absence of a marriage, civil union, or biological or adoptive

relationship with the child in a narrow class of cases in which the parents intended to

bring a child into their family and raise the child together, and in fact did so.” 

 (emphasis added). It explained “[t]his approach is not only consistent with [its]

caselaw concerning parental rights, but it also furthers the core purpose of Vermont’s

24 Of course, this case is not the only scenario where rightful parentage could fall through

those cracks. Imagine, for example, a couple (same- or opposite-sex) who uses ART to
conceive a child, but one intended parent changes their mind after conception, and
attempts to avoid all parental responsibilities and leave the other partner holding the
proverbial bag. Or imagine a scenario where a couple uses ART to conceive, but the
partner who is pregnant dies during childbirth. Such cases would implicate the same
roadblocks encountered here.


                                      [J-50-2024] - 43
statutes relating to parent-child relationships, which is promoting the welfare of children,

and it is supported by the weight of persuasive authority on this issue.” 

       To reach that conclusion, Vermont’s high court examined its existing precedent,

which it determined stood for “the proposition that in a narrow class of cases in which

there is no competing claimant, parental status can flow from the mutual agreement and

actions of the established legal parent and a putative second parent even in the absence

of a marriage or a civil union between the parents or a biological connection between

putative parent and child.”    

.   It relied on its earlier decision establishing

unmarried same-sex couples could avail themselves of second-parent adoptions without

one parent having to terminate parental rights, explaining the precedent established legal

parent status may arise from mutual agreement and joint conduct of a legally recognized

parent and intended second parent, and Vermont statutes are intended to promote the

welfare of children. See 

, citing In re B.L.V.B., 

 (Vt. 1993).

       Sinnott also relied on Miller-Jenkins v. Miller-Jenkins, 

 (Vt. 2006), a

case where a same-sex couple who conceived a child through donor insemination during

their civil union disputed the nonbiological mother’s parentage.         The Sinnott court

explained how Miller-Jenkins did not provide mere parent-like rights to the nonbiological

mother based on equitable grounds but rather full-on legal parentage. It reasoned Miller-

Jenkins established important analytical steps, i.e., that Vermont’s statutes did not limit

parentage in these situations, and that parentage here was not dependent upon marital

or civil union status alone, but was supported by a series of factors including: mutual

intention that both parties would co-parent the child, the nonbiological mother’s

participation in the decision to conceive the child, that they both treated the nonbiological

mother as a parent, and there was no other person claiming to be a parent. The Sinnott




                                      [J-50-2024] - 44
court explained, on the other hand, that it had also rejected broad theories of de facto

parentage that would allow any former domestic partner to establish parentage.

       From that line of case law, the Vermont court derived a narrow framework allowing

for non-biological parentage where “a child would otherwise have only one legally

recognized parent, the legally recognized parent (usually a biological parent) and the

other intended parent have mutually agreed to bring a child into their family to raise the

child together as equal co-parents, and the parents have in fact done so.” Id. at 567-68.

It explicitly distinguished its precedent disallowing broad, de facto parentage for non-

biological third parties based on “the joint decision of . . . parents to bring a child into their

home in the first place and their joint conduct in doing so.” Id. at 568. It explained this

“focus[] on the pre-conception agreement of the parents would promote the welfare of

children without undermining parental rights[,]” elaborating that limiting parentage to only

the biological parent “would have dire consequences for many children,” who could be

denied a continued relationship and financial support from the second parent. Id. at 568-

69. It further explained the biological parent’s rights would not be diminished, reasoning

“where a parent jointly plans and conceives a child with a partner, with the mutual intent

and agreement to raise that child together, that parent has no reasonable expectation of

sole parental rights in the event of a breakup.” Id. at 569. Finally, the Sinnott court

recognized its framework accorded with the modern trend of other jurisdictions. See id.

at 569-72.25


25 See also, e.g., In re Baby Doe, 

 (S.C. 1987) (“a husband who

consents for his wife to conceive a child through artificial insemination, with the
understanding that the child will be treated as their own, is the legal father of the child
born as a result of the artificial insemination and will be charged with all the legal
responsibilities of paternity, including support”) (emphasis added); People v. Sorenson,

 (Cal. 1968) (“[A] reasonable man who, because of his inability to
procreate, actively participates and consents to his wife’s artificial insemination in the
hope that a child will be produced whom they will treat as their own, knows that such
(continued…)

                                        [J-50-2024] - 45
       Much like the Sinnott court, we hold the gap in our law is properly filled by an

analysis of parentage focused on intent, since intent already serves as a beacon in our

existing jurisprudence. Our current law clearly establishes biology is not the end-all-be-

all when it comes to furthering the interests of legal parentage.26             Although the

proliferation of DNA testing offers an increasingly easy way to identify biological

parentage, adoption, ART contracts, and the presumption/estoppel doctrines provide for

(if not encourage) parentage that explicitly ignores genetics in some cases.27 In the

behavior carries with it the legal responsibilities of fatherhood and criminal responsibility
for nonsupport. One who consents to the production of a child cannot create a temporary
relation to be assumed and disclaimed at will, but the arrangement must be of such
character as to impose an obligation of supporting those for whose existence he is directly
responsible. As noted by the trial court, it is safe to assume that without defendant’s
active participation and consent the child would not have been procreated.”); Brooks v.
Fair, 

 (Ohio Ct. App. 1988) (“we do not believe that when [mother]
became artificially inseminated she intended the relationship between [non-biological
father] and [child] to be temporary”).
26 Cf. Lehr v. Robertson, 

 (1983) (“Parental rights do not spring full-

blown from the biological connection between parent and child. They require
relationships more enduring.”), quoting Caban v. Mohammed, 

 (1979)
(Stewart, J., dissenting); NeJaime, 126 YALE L.J. at 2290 (“tethering parenthood to
biological ties perpetuates the exclusion of same-sex couples, who necessarily include a
parent without a gestational or genetic connection to the child”).
27 In addition to these common law precepts, our General Assembly has enacted statutes

reflecting that biological truth can be overlooked in some circumstances, even in the
absence of marriage. As discussed, there are limited instances where parties can obtain
second-parent adoptions even if they are not married. In re Adoption of R.B.F., 

; cf. Sinnott, 

 (reasoning prior case holding second-parent
adoptions available to unmarried couples established, inter alia, “the [c]ourt’s recognition
that biology and marriage are not the only indicia of family formation that are worthy of
judicial recognition[,] . . . and that our statutes should be construed to bring the recognized
framework of our domestic relations laws to families as we find them”). Also, for example,
23 Pa.C.S. §5103 allows for voluntary acknowledgment of paternity of children born to
unmarried women, providing:
       The father of a child born to an unmarried woman may file with the
       Department of Public Welfare, on forms prescribed by the department, an
       acknowledgment of paternity of the child which shall include the consent of
       the mother of the child, supported by her witnessed statement subject to 18
(continued…)

                                      [J-50-2024] - 46
absence of that default biological tether between parent and child, all of these doctrines

countenance the parties’ intent, at least to some extent. For instance, a person seeking

to adopt a child must file a petition for adoption, which “shall set forth . . . [t]hat it is the

desire of the petitioner or the petitioners that the relationship of parent and child be

established between the petitioner or petitioners and the adoptee.” 23 Pa.C.S. §2701.

Accordingly, the prospective adoptive parent must confirm an intention to parent the child.

       Intent also informs application of the doctrine of parentage by estoppel. We have

acknowledged “estoppel in paternity actions is aimed at achieving fairness as between

the parents by holding them, both mother and father, to their prior conduct regarding the

paternity of the child.” Fish v. Behers, 

 (Pa. 1999) (quotation marks

and citation omitted). Parentage by estoppel accounts for the parties’ intentions by

looking at their past conduct in relation to the child: “the doctrine of estoppel embodies

the fiction that, regardless of biology, in the absence of a marriage, the person who has



       Pa.C.S. §4904 (relating to unsworn falsification to authorities). In such
       case, the father shall have all the rights and duties as to the child which he
       would have had if he had been married to the mother at the time of the birth
       of the child, and the child shall have all the rights and duties as to the father
       which the child would have had if the father had been married to the mother
       at the time of birth.
23 Pa.C.S. §5103(a) (footnote omitted). The statute further provides:
       Notwithstanding any other provision of law, an acknowledgment of paternity
       shall constitute conclusive evidence of paternity without further judicial
       ratification in any action to establish support. The court shall give full faith
       and credit to an acknowledgment of paternity signed in another state
       according to its procedures.
Id. at §5103(d). The form itself instructs parents: “By signing this Acknowledgment of
Paternity form, you give up the right to genetic testing to determine paternity, unless you
cancel the Acknowledgment in writing within 60 days of signing the form.”
Acknowledgment        of     Paternity,     Form       PA/CS      611,     available      at
https://www.humanservices.state.pa.us/CSWS/csws/forms/PA-CS-
611%20Form.pdf#page=1.


                                       [J-50-2024] - 47
cared for the child is the parent.” Brinkley, 

; see also Jones v. Trojak, 

 (Pa. 1993) (“under certain circumstances, a person might be estopped

from challenging paternity where that person has by his or her conduct accepted a given

person as the father of the child”); John M. v. Paula T., 

 (Pa. 1990)

(“estoppel cases indicate that where the principle is operative, blood tests may well be

irrelevant, for the law will not permit a person in these situations to challenge the status

which he or she has previously accepted”) (emphasis omitted).28

       In fact, a handful of other jurisdictions have used equitable estoppel principles to

incorporate the parties’ intent into questions of parentage in ART cases. For example, in

Strickland v. Day, the Supreme Court of Mississippi considered a case where a married

same-sex couple, Kimberly and Christina, decided to conceive using artificial

insemination and an anonymous sperm donor, and Kimberly served as the gestational

mother and provided the ovum. See 

 (Miss. 2018). After the

parties split up and disputed the status of Christina’s parentage, the Mississippi court

determined Kimberly was equitably estopped from arguing Christina was not a legal

parent. It relied on evidence implicating the parties’ intent, including that “Kimberly made

numerous representations that Christina was an equal coparent . . . [and] signed an

agreement at the clinic acknowledging the couple’s joint intention to undergo the AI

procedure.” 

. Additionally, “the couple sent out birth announcements that read:

‘Hatched by Two Chicks. Chris[tina] and Kimberly proudly announce the birth of their

son.’” 

 The court rejected Kimberly’s arguments she was planning on having a child

on her own regardless of her marital circumstances, citing evidence that Kimberly allowed


28 To a lesser extent, the presumption of parentage attendant to marriage also accounts

for the parties’ intent. Since the presumption applies only in cases with an intact marriage,
for it to attach the biological/recognized parent and putative parent must intend to
continue raising the child together as a cohesive family unit.


                                      [J-50-2024] - 48
Christina to take part in the conception process, the couple discussed the possibility of

Christina carrying the baby, and the birth announcement represented them both as

parents. The court explained “[t]his further evidence[d] the couple’s plan to undertake the

role of parenthood together,” and that there was “strong evidence of Kimberly’s position

regarding Christina’s coparent status.” 

. Thus, the Mississippi high court held

equitable estoppel applied “where there was ample evidence the then-married couple

jointly and intentionally agreed to have [a child] through the use of [artificial

insemination].” 

 (emphasis added).29 Like the Strickland court, we see estoppel

principles as directly related to parties’ intent.

       The parties’ intent is also the crux of the analysis when assessing parentage by

contract in the ART context. The whole point of contract law is to effectuate the intent of


29 See also Levin v. Levin, 

 (Ind. 1994) (husband equitably
estopped from denying legal parentage where he and wife agreed to conceive using ART,
reasoning, inter alia, he induced wife to go forward with ART and consented orally and in
writing to procedure); Laura WW. v. Peter WW., 

 (N.Y. App. Div.
2008) (“situations will arise where not all of the[] statutory conditions are present, yet
equity and reason require a finding that an individual who participated in and consented
to a procedure intentionally designed to bring a child into the world can be deemed the
legal parent of the resulting child”); Brown v. Brown, 

 (Ark. Ct.
App. 2003) (father equitably estopped from denying parentage/support obligation for
twins conceived using ART during marriage even though he did not sign statutorily
required consent, relying on trial court findings: “(1) that [father] knew [mother] was going
to get the sperm; (2) that [father] never said he would not consent to the procedure being
performed and he signed the documents that were placed in front of him; (3) that [father]
helped pick out the donor for the sperm; (4) that he allowed his name to be used on the
birth certificate; (5) that after the children were born, he recognized them as his children;
[and] (6) that it was only after [mother] began to talk about divorce that he decided he
should not be responsible for the children”); In re Marriage of Buzzanca, 

 (Cal. Ct. App. 1998) (“Estoppel is an ungainly word . . . expressing the law’s
distaste for inconsistent actions and positions — like consenting to an act which brings a
child into existence and then turning around and disclaiming any responsibility.”); R.S. v.
R.S., 

 (Kan. Ct. App. 1983) (“[A] husband who with his wife orally
consents to the treating physician that his wife be heterologously inseminated for the
purpose of producing a child of their own is estopped to deny that he is the father of the
child, and he has impliedly agreed to support the child and act as its father.”).


                                        [J-50-2024] - 49
the parties. See, e.g., Kripp v. Kripp, 

 (Pa. 2004) (“It is . . . well

established that under the law of contracts, in interpreting an agreement, the court must

ascertain the intent of the parties.”); C.G., 

 (Wecht, J., concurring)

(“Viewed through the lens of the parties’ intentions, the Ferguson and Baby S. cases

arrive at the same destination reached via a contract-based analysis.”). Applying contract

law to establish parentage in cases where parties have used ART, this Court has explicitly

recognized the intent of the parties may override biological realities. In Ferguson, by

holding ART contracts enforceable, we established Pennsylvania public policy accounts

for “the evolving role played by alternative reproductive technologies in contemporary

American society.”     940 A.2d at 1245.        Our analysis in Ferguson makes clear

Pennsylvania public policy does not forbid the prioritization of parents’ intent over genetics

and biology in the context of ART. We recognized that allowing Pennsylvanians flexibility

to use “all manner of arrangements . . . couched in contracts or agreements of varying

degrees of formality” better allows the “increasing number of would-be mothers who find

themselves either unable or unwilling to conceive and raise children in the context of

marriage [to] turn[] to donor arrangements to enable them to enjoy the privilege of raising

a child or children[.]” Id. See also Baby S., 

 (imposing legal parentage

on nonbiological mother who contracted with gamete donor and gestational carrier in

accordance with recorded intent to parent the child).

       We acknowledged in Ferguson that when parties act upon their intentions to

conceive a child, they create real-world consequences. We explained, “[t]his Court takes

very seriously the best interests of the children of this Commonwealth, and we recognize

that to rule in favor of [s]perm [d]onor in this case denies a source of support to two

children who did not ask to be born into this situation.” Ferguson, 

. We

recognized the fact that, “[a]bsent the parties’ agreement, however, the twins would not




                                      [J-50-2024] - 50
have been born at all, or would have been born to a different . . . sperm donor.” 

 See

also Baby S., 

 (“Baby S. would not have been born but for [a]ppellant’s

actions and express agreement to be the child’s legal mother.”). Similarly here, Child

would not have been born if Glover and Junior had not intentionally endeavored together

to conceive and raise a child. Indeed, the parties chose their specific sperm donor based

on his similarities to Junior, and conceived Child at a specific time and place based on

the context of their relationship and joint contributions to the ART process. Even if Glover

chose to conceive a child by herself, it is highly unlikely the same exact sperm and ovum

would have been used. Thus, Child exists because of both Glover and Junior. And

unlike in Ferguson, allowing for intent-based parentage does not require the Court to

reckon with the denial of a source of support for the child; it has the exact opposite effect,

imposing parental rights and duties on both parents.

       Having demonstrated that intent drives the analysis when applying our existing

parentage doctrines, and that intent-based parentage accords with public policy, we hold

that parentage may be established by proof of intent shared by two parties to use ART to

conceive and co-parent a child together, even without meeting all the formalities of

contract law. Cf. Sinnott, 

 (“This approach is not only consistent with our

caselaw concerning parental rights, but it also furthers the core purpose of Vermont’s

statutes relating to parent-child relationships, which is promoting the welfare of children,

and it is supported by the weight of persuasive authority on this issue.”). We will not

require those parents who use ART to transact or bargain with each other. The decision

made within a loving couple to have a baby is generally not a quid pro quo, and we decline

to put courts in the position of parsing through couples’ actions to determine whether they

were done gratuitously or as an exchange for consideration. We prefer to recognize a

more dignified means to establish parentage for couples who use ART to conceive.




                                      [J-50-2024] - 51
       Contrary to the two-step standard Junior advocates for, however, we do not go so

far as to adopt a new marital presumption for purposes of the intent-based parentage

analysis. Certainly, the fact a couple is married at the time they decide to conceive a child

will typically weigh in favor of finding they intended to conceive and raise the child

together. And we do not foreclose the possibility that as our common law develops

pursuant to this doctrine, intent in those situations may be deemed so prevalent as to

warrant the adoption of a presumption. But we need not make that pronouncement today,

where the record contains extensive evidence of the parties’ intent. Instead, it is enough

to say that courts undertaking an intent-based parentage analysis should consider all

evidence from all relevant time periods — including, when applicable, pre-conception,

during conception, during gestation, during birth, and post-birth — to determine whether

the parties jointly undertook ART intending to conceive and co-parent the child together.

       We reiterate the record here is replete with evidence to support the lower courts’

holdings the parties mutually intended to bring Child into the world and raise him together,

and that Junior participated in that process. Among other things, Glover and Junior jointly

entered into multiple contracts pertaining to the conception and birth of Child, and Junior

was even listed as a “Co-Intended Parent” in the Fairfax Cryobank contract. Junior played

an active role in selecting the sperm donor, and the couple chose a donor based on his

similarities to Junior. Junior shared equally in the costs of conceiving Child and assisted

Glover with the IVF process by administering injections and attending doctors’

appointments. They planned a baby shower together and picked out a name for the baby.

But perhaps most cogently, both Glover and Junior signed affidavits stating their

intentions plainly. Glover attested, inter alia, “I am seeking to have my spouse, [Junior,]

adopt this child in order to provide this child with the legal stability of two parents”; “I

understand that this means [Junior] will become a legal parent, with rights equal to my




                                      [J-50-2024] - 52
rights as a biological parent”; “I understand that this means [Junior] will have custody

rights and child support obligations to this child if we ever separate in the future”; and “I

want [Junior] to become a legal parent to this child because I believe it is in the best

interests of the child.” Glover Aff., 12/5/2021 (emphasis in original). Junior’s affidavit

reflects the same plan and purpose. Even if the parties’ intent were not apparent from

their conduct, it was spelled out in black and white in the affidavits. Thus, the record

amply supports the conclusion the parties mutually intended to conceive and raise Child

together. But rather than view that intent as part of a contract between spouses, we affirm

the Superior Court’s holding it establishes, without more, Junior’s parentage of Child.

       Despite our acceptance of intent-based parentage in the ART context, we

nevertheless encourage couples in similar circumstances to document their intentions in

writing. While not necessarily dispositive, such writings (like the affidavits in this case)

provide strong evidence of intent should a dispute arise, even if the writings do not meet

the elements of a contract. We do not foreclose the possibility that partners in a couple

could contract with each other to have a child together. But the point is that we do not

require them to do so, and in any event, under this intent-based doctrine, the additional

elements required by contract law need not be proved. Furthermore, we emphasize our

decision today does not obviate the other paths to parentage already recognized in our

case law.30



30  For instance, ART contracts are still enforceable to establish parentage among
intended parents and gamete donors or gestational carriers — since intent-based
parentage is limited to resolving disputes between the intended parents, it would not
suffice to establish parentage when the dispute is between the intended parents and the
donors/carriers. Additionally, as amici GLBTQ Legal Advocates & Defenders et al. note,
LGBTQ+ parents are often advised to complete a confirmatory adoption to ensure full
faith and credit of parentage in other jurisdictions; while these parents who use ART can
now rely on intent-based parentage if a dispute arises in Pennsylvania, the Court does
not discourage them from taking other measures to preserve their rights in other states.


                                      [J-50-2024] - 53
                                      IV.     Conclusion

      For all the foregoing reasons, we adopt the doctrine of intent-based parentage into

our common law, and we affirm the Superior Court’s decision Junior is Child’s legal parent

based on that ground only.

      Chief Justice Todd and Justices Donohue and Wecht join the opinion.

      Justice Brobson files a concurring opinion in which Justice Mundy joins.

      Justice McCaffery did not participate in the consideration or decision of this matter.




                                     [J-50-2024] - 54