“Father Has Held Himself Out as ‘the Father,’ … But Father Has Also Referred to Himself as ‘the Mother'”
From In re Adoption of L.U., decided Friday by the Pennsylvania Superior Court (in an opinion by Judge Deborah Kunselman, joined by Judges Carolyn Nichols & Daniel McCaffery):
S.U. (Father), pro se, appeals the orders issued by the Westmoreland County Orphans’ Court, which dismissed his petition to terminate the parental rights of C.J. (Mother) regarding three of their Children. Father sought termination, arguing that Mother was merely a “gestational surrogate,” who lacked the parental rights guaranteed by the Fourteenth Amendment of the United States Constitution. The orphans’ court found that Father, a nonresident, turned to the Pennsylvania judiciary in order to attack the parties’ operating custody order, which had been issued in West Virginia, where Mother and the Children reside. The orphans’ court concluded it lacked jurisdiction to adjudicate the termination petition under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). After careful review, we affirm….
The parties’ first child was conceived through intrauterine insemination (IUI) and is not the subject of this appeal. The remaining three Children were conceived through in-vitro fertilization (IVF). Mother carried the embryos and gave birth to them. Mother was listed as the mother on all three birth certificates, while Father was listed as the father. Mother believed Father’s sperm was used to conceive the Children, until she learned during the West Virginia custody litigation that this was not the case. “Before the parties met, Father underwent surgeries to correct unspecified ‘anomalies’ [….]”
During the West Virginia litigation, Mother became aware that the eggs used in the birth of the parties’ Children actually came from Father, who had his own eggs harvested and stored years prior. {During the West Virginia litigation, Father had “testified that he was not a binary male or female at birth, although he has always considered himself to be male.” A court granted Father’s petition to change the name on his birth certificate to his current name in 2002. Although we are careful not to speculate, the record suggests Father was born with male and female reproductive organs.}
In the record before this Court, Father has held himself out as “the father” in this matter. But Father has also referred to himself as “the mother”—because his eggs were used to conceive the Children—to advance his legal position.
Father’s position is that Mother has no parental rights, because the Children were conceived using his eggs, not hers, and because he was listed as the father on the Children’s birth certificate. Thus, Father appears to argue that he is the mother in fact, and the father by law. Ultimately, Father’s gender and biology is immaterial to our disposition. We highlight these facts only insofar as they clarify Father’s legal position and the historical background of this case, which the orphans’ court set forth in great detail:
Father is a registered nurse and nurse practitioner. It is unclear where Father currently resides, but Father previously resided in West Virginia.
Mother resides in West Virginia. The parties, who were never married, were in a relationship for approximately 12 years, although the exact nature of their relationship is unclear.
The parties have four children together, all of which were conceived nontraditionally. Father did
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