                                  [J-32-2018] [MO: Mundy, J.]
                          IN THE SUPREME COURT OF PENNSYLVANIA
                                       MIDDLE DISTRICT


    C.G.,                                            :   No. 2 MAP 2018
                                                     :
                            Appellant                :   Appeal from the Order of the Superior
                                                     :   Court at No. 1733 MDA 2016 dated
                                                     :   October 11, 2017 Affirming the Order
                     v.                              :   of the Centre County Court of
                                                     :   Common Pleas, Civil Division, at No.
                                                     :   2015-4710 dated September 22,
    J. H.,                                           :   2016.
                                                     :
                            Appellee                 :   ARGUED: May 15, 2018


                                        CONCURRING OPINION


JUSTICE WECHT                                                 DECIDED: September 21, 2018

             Governed by our well-settled standard of review, I join in today’s result. Along the

way to this conclusion, my analytical journey diverges twice from the path that the learned

Majority takes. First, for purposes of adjudicating standing to sue as a parent in cases

involving assisted reproductive technologies (“ART”),1 courts must probe the intent of the

parties. Reliance solely upon biology, adoption and contracts is insufficient. Second, for

purposes of deciding in loco parentis standing, courts should consider post-separation

conduct only when they first are able to determine that the custodial parent has not



1       For purposes of the discussion at hand, I include within the ART rubric the full
variety of medical interventions designed to allow for reproduction through means other
than sexual intercourse, including in vitro fertilization, sperm and egg donation,
gestational surrogacy, and artificial insemination. See generally, Jillian Casey, Courtney
Lee, & Sartaz Singh, Assisted Reproductive Technologies, 17 GEO. J. GENDER & LAW 83,
83-85 (2016).
withheld the child from the other party. Otherwise, custodial parents effectively can

preclude most in loco parentis claims by non-custodial parties. My thinking on these two

points follows.

                                    Parentage and Intent

       In affirming the Superior Court, the Majority correctly notes that the appellate

panel’s cramped definition of parentage as including only biological and adoptive parents

overlooked the recognition of parentage by contract expounded in Ferguson v.

McKiernan, 940 A.2d 1236 (Pa. 2007) and In re Baby S., 128 A.3d 296 (Pa. Super.

2015).2 This is fine as far as it goes. But it does not go far enough. The Majority draws

too narrowly upon Ferguson and Baby S., validating solely their contractual jurisprudence

but declining to proceed further.3 While a measured approach to standing is always

appropriate,4 the Majority’s analysis , while reasonable in the main, nonetheless fails to




2      See Maj. Op. at 21. To this list, I would add that one can be found to be a parent,
regardless of biology or adoption, through the presumption of paternity, see Brinkley v.
King, 701 A.2d 176, 178-79 (Pa. 1997) (stating that a child conceived or born during a
marriage is presumed to be the husband’s child), and paternity by estoppel. See
Freedman v. McCandless, 654 A.2d 529, 532-33 (Pa. 1995) (“Estoppel in paternity
actions is merely the legal determination that because of a person’s conduct (e.g., holding
out the child as his own, or supporting the child) that person, regardless of his true
biological status, will not be permitted to deny parentage.”).
3      See Maj. Op. at 21 & n.11.
4      At the time that C.G. filed for custody, the applicable statute provided standing to
pursue custody to a parent, a person who stands in loco parentis, or a grandparent in
certain specified circumstances. 23 Pa.C.S. § 5324 (2011). In response to J.H.’s
preliminary objections, C.G. asserted standing as a parent or, alternatively, as someone
who stood in loco parentis to Child. As the Majority notes, standing in custody cases is
governed by statute. See T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001) (stating that
standing exists in custody cases when authorized by statute). Standing for custody
purposes implicates the fundamental liberty issue of a parent’s ability to direct the care
and custody of his or her child. See generally Troxel v. Granville, 530 U.S. 57, 66 (2000).


                             [J-32-2018] [MO: Mundy, J.] - 2
imagine and embrace the intent-based paradigm that ART-related child custody disputes

require.

       Consider Ferguson. There, the trial court found, and this Court accepted, that the

mother approached her former intimate partner with a request for sperm donation so that

she could conceive a child via in vitro fertilization. Ferguson, 940 A.2d at 1239. Only

after the mother convinced the sperm donor that he would bear no legal or financial

responsibility for the prospective child did the donor agree to the arrangement. Id. The

donor did not pay for the in vitro fertilization, did not complete most of the paperwork, and

did not attend prenatal appointments. Id. at 1240. After mother went into premature

labor, she requested the sperm donor to join her at the hospital, where she delivered

twins. Afterward, with the mother’s agreement, the sperm donor maintained anonymity,

assumed no financial responsibility, and was not listed on the birth certificates.        Id.

Indeed, the donor had little contact with the mother or twins following the birth, provided

no financial support, and assumed no paternal duties. Id. Rejecting the mother’s public

policy arguments, this Court decided that the oral contract between the mother and the

sperm donor was enforceable and held that the mother was foreclosed from seeking child

support from the donor. Id. at 1247-48.

       Viewing Ferguson from the perspective of the parties’ intent, the same adjudication

would result. The sperm donor’s actions bore all the hallmarks of a clinical donation of

gametes calculated and designed to result in no parental role for the donor. The mother

acted in accordance with that intention for approximately the first five years following the

twins’ births. She did not seek financial support, and she did not attempt to involve the

sperm donor in the lives of her children. Neither the mother nor the sperm donor ever




                             [J-32-2018] [MO: Mundy, J.] - 3
manifested any intent for the latter to be a parent to the twins at any time before or after

the birth; in fact, both the mother and the donor expressed and acted upon the opposite

intention. And then, some five years on, the mother sued the sperm donor for child

support. It was this volte-face that our Court declined to approve. By intention, as well

as by contract, the mother’s case for support was a non-starter.

          Now, consider Baby S.. There, in determining that the ex-wife was the legal parent

of the child born through ART, the Superior Court focused upon the existence of a

contract. But the appellate panel just as easily could have ruled based upon the parties’

intent.    The father and ex-wife signed a contract to enter into a surrogacy with a

gestational carrier and evidenced their intent to be the legal parents of the resulting child.

Baby S., 128 A.3d at 298. The ex-wife’s communications with the gestational carrier

demonstrated the ex-wife’s intent to be a parent to the child. Id. at 299. The father and

the ex-wife chose a gestational carrier in Pennsylvania because the ex-wife could be

listed on the birth certificate without having to go through the adoption process. Id. at

298. When the pregnancy was confirmed, the ex-wife and the father moved to a new

home in order to accommodate a larger family.           They attended the twentieth-week

ultrasound and acted in a way that suggested that they intended to parent the child. Id.

at 300. Only when the father and ex-wife began to experience marital difficulties did the

ex-wife begin to act in a manner contrary to that joint intention. Id. at 301. Because the

ex-wife gave every indication that she was the parent of the child conceived through ART,

the Superior Court could have relied upon her expressed and manifest intentions in order

to find that she was the child’s legal parent. That the Superior Court relied instead upon

the existence of a contract is no contradiction of this principle.




                               [J-32-2018] [MO: Mundy, J.] - 4
       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. This is

unsurprising, inasmuch as the contract evidences the intent. But the point of this exercise

is that ART requires us to hypothesize other scenarios, cases in which an intent analysis

would not foreclose a valid claim to parentage while a contract-based approach would.

Under the Majority’s formulation of parentage by contract, one becomes a parent through

use of ART and the formation of a binding contract regarding ART. Maj. Op. at 21. Fair

enough. But suppose 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. See 23 Pa




                             [J-32-2018] [MO: Mundy, J.] - 5
C.S. § 5324(2). The problem is not so simple. First, if the couple separates shortly after

(or before) the child’s birth, the second partner -- who fully 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.      See T.B., 786 A.2d at 916-17.        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.5

       In the past, Pennsylvania courts have found that same-sex partners have standing

under the in loco parentis rubric. This paradigm has evolved with time and with the

forward march of humanity. As 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. See Douglas NeJaime, The

Nature of Parenthood, 126 YALE L.J. 2260, 2317-23 (June 2017) (discussing the practical

and expressive harms attending non-recognition of parentage); Jillian Casey, Courtney

Lee, & Sartaz Singh, Assisted Reproductive Technologies, 17 GEO. J. GENDER & LAW 83,

117 (2016) (identifying “judicial parentage tests that consider factors beyond intent” as a

primary source of disparate treatment of same-sex couples seeking parentage). At this



5      See T.B., 786 A.2d at 916 (“A third party has been permitted to maintain an action
for custody . . . where that party stands in loco parentis to the child “); Morgan v. Weiser,
923 A.2d 1183, 1186 (Pa. Super. 2007) (“As a general rule, third parties, other than
grandparents, usually do not have standing to participate as parties in child custody
actions. An exception to this general rule exists when the third party stands in loco
parentis to the child.”).


                              [J-32-2018] [MO: Mundy, J.] - 6
late date, there is no defensible reason that partners in scenarios like the one sketched

above should not be recognized as parents under the standing statute. It bears emphasis

that nothing in the custody statute promulgated by our General Assembly bars such an

intent-based approach. Only the judiciary stands in the way.

       Observe that members of an opposite-sex couple availing themselves of ART in a

situation identical to the one described above would not be consigned to such limbo. If

the female partner contracts for ART with a sperm donor and the male partner is not a

party to that contract and does not adopt the child, the male partner nonetheless can find

shelter (and, more importantly, standing) in the paternity by estoppel doctrine in the event

of a separation.6 The male partner would need only to show that he held the child out as

his own. He would not have to attempt intervention as a third party who seeks to stand

in the shoes of a parent. I perceive no need or reason for treating these hypothetical

parties differently when both intended fully to be parents and when both acted in

accordance with those intentions.

       While I would embrace an intent-based test for parentage for persons pursuing

parentage through ART, I nonetheless concur with the Majority’s determination that C.G.

was not a parent under the facts of this case as found by the trial court.7 As the Majority

notes, the trial court found that J.H. was credible when she testified that C.G. never

intended to be a parent to Child and that C.G. did not act as a parent. Further, the trial


6      See supra n.2.
7      “We must accept findings of the trial court that are supported by competent
evidence of record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility and weight of the evidence,
we must defer to the presiding trial judge who viewed and assessed the witnesses first-
hand.” D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014).


                             [J-32-2018] [MO: Mundy, J.] - 7
court credited testimony that C.G. and J.H. reached no mutual decision to become

parents. Given that there was no documentary evidence of C.G.’s intent to parent, and

given that the trial court found, consistent with the record, that C.G.’s actions were not

those of a parent, I join the Majority’s conclusion that C.G. did not have standing as a

parent pursuant to 23 Pa.C.S. § 5324.8

                                    In Loco Parentis

       Turning to the issue of in loco parentis standing, I agree with the Majority that the

bond between a child and a third party is not dispositive. Maj. Op. at 30. I further agree

that “post-separation conduct [of the third party] should not be determinative of the issue

of [in loco parentis] standing.” Id. at 32. Nonetheless, the Majority would (and in fact

does) permit the consideration of post-separation conduct as “shed[ding] light on . . .

whether the person seeking standing was ever viewed as a parent-like figure.” Id. I differ

with the Majority as to how post-separation conduct should be considered and as to the

manner in which such conduct plays a role in this case.

       The Majority recognizes that there is “potential for misconduct” inasmuch as a

parent can withhold the child from the third party in an attempt to destroy an in loco

parentis relationship. Id. Though it acknowledges this concern, the Majority deems it no

bar to consideration of C.G.’s post-separation conduct, and “decline[s] to foreclose a trial

court from reviewing all relevant evidence. . . .” Id. The elasticity of this standard gives


8      With respect both to this issue and to the in loco parentis analysis, as the trial court
noted, the testimony of the parties and the witnesses was “in direct conflict.” T.C.O. at 5.
The record provides testimony that, if found credible, would support C.G.’s claims that
she intended to be a parent and that she assumed a parental role and discharged parental
duties. Similarly, there is testimony that supports J.H.’s claims to the opposite effect.
Because we are bound as a reviewing court by the trial court’s credibility findings, we
must accept the testimony of J.H. and her witnesses.


                              [J-32-2018] [MO: Mundy, J.] - 8
me pause. If there is evidence that the third party has assumed parental status and

discharged parental duties during the relationship, and if there is evidence that the

custodial parent purposefully withheld the child, then post-separation conduct should not

be considered for purposes of denying standing to the third party. This Court should not

countenance even the suggestion that a parent unilaterally can erase from a child’s life a

third party who, in all material respects, acted as a parent.

       The Majority maintains that the trial court in this case did not premise C.G.’s lack

of standing upon her post-separation conduct. Id. Instead, the Majority opines, the trial

court “simply concluded” that the post-separation conduct was “consistent” with the trial

court’s conclusion that C.G. did not act as a parent. Id. In ruling that C.G. did not act in

loco parentis, the trial court considered that C.G. removed J.H. and Child from C.G.’s

health insurance after separation and reasoned that doing so was consistent with C.G.’s

post-separation conduct of ending any financial support and arranging for J.H. and Child

to leave the shared residence. Trial Court Opinion at 6-7. The trial court also emphasized

the fact that C.G.’s extended family did not maintain a relationship with Child following

separation. Id. at 8. Finally, the trial court devoted one of the six categories it considered

in determining in loco parentis standing to post-separation conduct. Id. at 9-10. In fact,

the trial court began that portion of its analysis with: “Perhaps most telling that [C.G.] did

not assume the role of a parent is her conduct post-separation.” Id. at 9. Given that this

case hinged upon credibility findings — in that the parties and their witnesses agreed

upon very few facts — it appears that C.G.’s post-separation conduct weighed heavily in

the trial court’s finding that C.G. lacked standing to pursue custody.




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       The standard that Pennsylvania courts should follow is to foreswear consideration

of any post-separation conduct until after they determine whether the custodial parent

withheld the child from the third party. Only if the trial court decides that the parent did

not withhold the child should the court consider post-separation conduct. This will prevent

post-separation conduct from being deployed as a thumb upon the scale unless and until

the trial court determines that it was the third party, rather than the custodial parent, who

decided to limit post-separation contact. Unlike the Majority, I do not view the trial court’s

consideration of post-separation conduct here as merely confirming its decision on

standing. Instead, it appears that this consideration figured significantly as a distinct and

influential factor in the trial court’s analysis.

       That said, I recognize and respect the reality that the trial court made a finding that

J.H. did not withhold the child from C.G. Id. at 10. Accordingly, even under the test that

I advance here, the trial court would have been free to consider the post-separation

conduct.

                                             ******

       In sum, I think that today’s case is a missed opportunity for this Court to address

the role of intent in analyzing parental standing in ART cases. I differ as well with the

Majority’s assessment of the manner in which post-separation conduct can be considered

in weighing in loco parentis claims. These differences notwithstanding, we are bound on

appellate review by the trial court’s fact-finding and credibility determinations. Under that

familiar standard, regardless of my divergences from the Majority’s rationale, C.G. lacked

standing to pursue custody here. Accordingly, I concur in the result.

       Justice Donohue joins the concurring opinion.




                               [J-32-2018] [MO: Mundy, J.] - 10
