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After Marriage Equality: Protecting Parental Rights of Same-Sex Couples

Tiffany L. Palmer, Esq. on 1/22/2015

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Ms. Palmer is a partner at Jerner & Palmer, P.C.

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Article Image Eight months after the decision in Whitewood v. Wolf, which permitted same-sex marriage in Pennsylvania, questions still remain as to the full implementation and impact of the decision in the area of family law. The biggest question facing family law practitioners is how to counsel same-sex married couples who conceive a child via assisted reproduction during their marriage. Are both spouses the parents by virtue of the marital presumption of paternity under Pennsylvania law?

This question impacts same-sex female couples who conceive a child using an anonymous sperm donor. The birth mother is clearly a parent, but is her spouse also a parent under the laws of Pennsylvania? What happens if the couple moves to another state? Will they both be considered the parents of the child in that new state even though only one of them has a genetic connection to the child? Does the answer to this question change if the marriage is no longer intact? These questions have yet to be fully clarified by the courts and there is no statutory guidance in Pennsylvania.

Unlike our neighboring states of New Jersey, New York and Delaware, Pennsylvania does not have any statutes governing the parentage of children who are conceived via assisted reproductive technology. New Jersey has a donor insemination statute N.J.S.A. 9:17-44(a) which states that if a woman is inseminated artificially with semen donated by a man who is not her husband the "husband is treated in law as if he were the natural father of a child thereby conceived if, under the supervision of a licensed physician and with the consent of her husband." New York has a similar statute titled, "Legitimacy of children born by artificial insemination." N.Y. Dom. Law Article 5 § 73. Applying these in a gender neutral manner, they should also apply to same-sex female couples. Both of these statutes also require a physician to perform the insemination and written consent of the spouses at the time of the insemination. Delaware has adopted the Uniform Parentage Act and entire subsection on "Child of Assisted Reproduction" 13 § 8-701. However, unlike Delaware, Pennsylvania has not adopted any form of the Uniform Parentage Act. Thus, practitioners must look at Pennsylvania case law for the answers and no court thus far has directly answered this question.

Courts will need to determine whether the marital paternity presumption applies to a same-sex spouse, and, if it does, whether it can be rebutted when the spouse is physically incapable of being the genetic parent from the onset. If the presumption has been rebutted or is inapplicable, courts will need to determine whether the doctrine of estoppel applies. These will be novel issues for Pennsylvania courts to grapple with over the next few years.

Pennsylvania courts will not be the only courts grappling with these complex issues. The most significant future risk to a challenge of the non-genetic mother´s parentage is most likely to come from her own spouse, the other parent of the child, in a future custody dispute. Such cases have arisen all over the country as one parent crosses borders to try to nullify the parental rights of her former partner. In these cases, to complicate matters, the law that applies to the case will be the law of state where the custody dispute arises, which may not necessarily be the state where the child was born. The UCCJEA vests "exclusive [and] continuing jurisdiction" for child custody litigation in the courts of the child´s "home state," which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). The statutory schemes and case law addressing parentage for children conceived via assisted reproduction vary significantly from state to state, only adding to the uncertainty for same-sex parents.

The best way to legally protect the couple and the child from a future challenge to parentage in any jurisdiction is to secure an adoption for the non-genetic parent. As a married couple, they may file for a kinship or stepparent adoption in Pennsylvania without a Report of Intention to Adoption and the expense and delay of a home study under 23 Pa C.S. § 2531(c). This is advisable even if both women´s names already appear on the child´s birth certificate. A birth certificate is an administrative record and not a legal determination of parentage. An adoption decree will withstand challenge in any state, and hopefully, prevent costly litigation and the risk of a future separation between the non-genetic parent and the child.

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