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October 15, 2018

PA Supreme Court Declines (For Now) to Expand the Meaning of Parentage in Same-Sex Couple’s Child Custody Dispute

The Pennsylvania Supreme Court ruled on Sept. 21 that a woman who was in a same-sex, unmarried relationship with the biological mother of a boy conceived through artificial insemination is not legally the boy’s parent and is not entitled to partial child custody.

The ruling, set forth in an opinion written by Justice Sallie Updyke Mundy, is based upon the parties’ unique circumstances. It leaves open the possibility that under a different factual scenario the court might expand the meaning of parentage under Pennsylvania’s child custody statute so as not to limit it to the biological or adopted parents of a child.

Parental Role

In C.G. v. J.H., the women were living together in Florida when J.H. paid for artificial insemination herself and gave birth to a son in 2006. After the couple separated in February 2012, J.H. moved to Pennsylvania with the boy, who was then 6 years old. In 2015, C.G. filed a lawsuit in Pennsylvania seeking partial custody.

During the litigation, the ex-partners fiercely disputed C.G.’s role in the child’s life. J.H. maintained that the decision to have a child was hers alone and that she alone acted as his parental caretaker. C.G. claimed the two agreed to have a child together, she considered the boy to be her son, and that she played an active role as co-parent.

The trial court found that prior to the couple’s separation C.G. did not act as a co-parent, and the Superior Court of Pennsylvania affirmed that ruling.

Pennsylvania Supreme Court Decision

On appeal, C.G. argued for expanding the meaning of legal parentage under Pennsylvania’s child custody statute, Pa.C.S. §5324(1). C.G. urged that in addition to traditional concepts of parentage by biology and adoption, legal parentage should also include: “those who intend to bring a child into the world with the use of assistive reproductive technology and then co-parent the child subsequently born through that process.”

In rejecting C.G.’s argument, the high court reasoned that C.G.’s case did not provide a factual basis upon which to expand the definition of “parent.” Note that the statute does not explicitly define the term “parent” and thus under Pennsylvania case law the term is presumed to go by its popular and everyday meaning.

In ruling against broadening the meaning of “parent” the high court reasoned:

The instant case is not one where a statutory presumption would be bestowed on a similarly-situated male based on cohabitation in the absence of marriage, and as highlighted throughout, the factual findings of the trial court determined that C.G. did not jointly participate in Child’s conception and hold him out as her own.

The Takeaway

Although C.G. did not prevail, the Supreme Court seemed open to adopting a parentage by intent standard under the right set of circumstances when a child is conceived via assistive reproductive technology. As Justice Mundy wrote:

The jurisprudence in this Commonwealth has declined to void contracts involving surrogacy and/or the donation of sperm or ova recognizing a separate mechanism by which legal parentage may be obtained (or relinquished). The facts of C.G.’s case do not place her into this narrow class of cases where legal parent rights and responsibilities have been relinquished or assumed via contract.

We will keep you posted of future developments in this emerging area of law.

For more than 30 years, the family law lawyers at Schuster Law have been handling a wide range of cases ― from typical divorces to complicated child custody and support arrangements.