Important Legal Considerations for Same Sex Couples in Pennsylvania: Why Adoption is Crucial

Given that Pennsylvania has allowed same-sex marriages since 2014, and advances in assisted reproductive technology (ART) have made parenthood more accessible, many same sex couples are able to expand their families. Although same sex couples were given the right to marry 11 years ago, this right still has not carried over to custody and the right to parent. The result of this is that ALL same sex couples must participate in an adoption proceeding, or they risk losing their parental status should there be a break up.  

Pennsylvania, like most other states, continues to maintain a paternity presumption, but no maternity presumption.  This means that a child born to a  straight couple during marriage is presumed to be the child of the husband. But a child born to a lesbian couple, even if the women are married, is not presumed to be a child of the mother who did not birth the child.  Perhaps the embryo was created using the egg from the non-birthing mother. In this situation, since the pregnancy was the result of IVF, many attorneys are even cautioning the birth mother to adopt the child, because of a later challenge by the “genetic” mother to claim she is the real parent.  There are many cases throughout the country where a lesbian couple separate, the wife did not adopt the child and she is then denied custodial rights. 

And, this lack of legal parentage exists even if both names are on the birth certificate! 

The hope is that states adopt a Parentage Act, which would provide that a child born to a married couple is presumed to be the child of both parents, but it hasn’t become law in Pennsylvania. To safeguard the family unit, Pennsylvania same sex couples should strongly consider contacting an attorney to process a second-parent adoption. Adoption creates a legally recognized parent-child relationship for the non-biological parent, thus securing parental rights and responsibilities, such as custody.  

At Bloom Peters we are committed to supporting LGBTQ+ families with knowledgeable and compassionate legal guidance. If you are considering or currently pursuing ART, do not leave your parental rights to chance. Contact us to schedule a consultation with one of our experienced family law attorneys who can help you navigate adoption.