Same Sex Marriage: One Parent May Still Need to Adopt

While Same Sex marriage was established as a federal right by the Supreme Court ruling of June 26, 2015, the Court did not delve into parental rights after marriage. So, in Pennsylvania, it is entirely possible for same sex female couples to marry, enjoy all the legal protections and privileges of a traditional married couple, and one of the partners still has no legal right over their spouse’s biological child born after the marriage.

This is because federal and state law assume that in different sex marriage the biological mother is always the legal mother and the father is assumed to be both biological and legal parent as well. This is not true if both parents are female or male.

Confused? Consider this scenario. Abigail and Janice get married. The two then decide they want to raise a family together, and through Assistive Reproductive Technology (like in vitro fertilization with donor sperm), Abigail becomes pregnant. The child born to Abigail automatically becomes Abigail’s legal child because of her biological relationship. But Janice has no legal standing as a parent, unless she takes action to complete what is called a Stepparent, or Second Parent Adoption.

For same sex male marriages, the law assumes neither is the legal parent as neither can give birth nor is married to a female who can. For instance, Danny and John get married. After marriage they decide to raise a family. Their only option is to adopt and obtain a Court Order proving their parentage. This is true even if one of the men is the sperm donor to a woman using Assistive Reproductive Technology to act as a gestational surrogate for Danny and John.

In 2016, Pennsylvania’s Department of Health issued new guidelines to hospitals that they are to include both partners in a same sex marriage on a child’s birth certificate. This helps clarify relationships, but does not solve the legal issue. Both men in a same sex male marriage and the non-birthing woman in a same sex female marriage must still obtain legal status as parents through the courts.

The state’s ACLU has also issued guidelines for couples sorting through state parental law.

Undoubtedly this very issue will become the focal point of future legislation, both state and federal. For now, though, a Judge’s Order is required to establish parental rights. Busy new parents may put this on the back burner, but consider the ramifications if the nonbirthing parents do NOT adopt their own child.

• If the biological parent becomes incapacitated or dies, the remaining parent is left with no legal right to make medical or legal decisions for the child.
• Death of the nonbiological parent would mean that the child would not be able to inherit from that person’s estate if he/she died intestate (without a Will).

I have been guiding couples through Stepparent Adoption (also known as “Second Parent Adoption”) in Pennsylvania for decades. The process is streamlined compared to a more traditional adoption of a wholly unrelated child. Yet, it is intricate and requires attention paid to rigorous rules of the Orphans Court of the county in which you reside. If you would like to talk more about Second Parent Adoption, I offer a free first consult to new clients.

Call my office at 215-345-5259 to schedule.

Elissa C. Goldberg, Esquire
www.elissagoldberg.com