Although Pennsylvania is lagging behind neighbor states in nondiscrimination protections for LGBTs and relationship recognition for same-sex couples, for the past 10 years the state has allowed countless LGBT couples to create legally protected families, thanks to a pivotal ruling from Pennsylvania’s top court.
On Aug. 20, 2002, the Pennsylvania Supreme Court found that same-sex couples cannot be barred from petitioning for second-parent adoptions — which allow the child’s biological or legal parent to incorporate a partner as the joint co-parent, with both retaining equal parental rights.
The lawsuit that led to the ruling was spearheaded by lead counsel Christine Biancheria with attorney Sandra Grey and support from Women’s Law Project and Center for Lesbian and Gay Civil Rights, the predecessor to Equality Pennsylvania.
The case arose out of the state’s patchwork legal options for LGBT-headed families.
“Some counties would do second-parent adoptions, and some counties wouldn’t,” Biancheria said. “So there were huge portions of the state where people couldn’t get true legal protection.”
At the time of the case’s filing, second-parent adoptions for same-sex couples had been granted in only 14 of the state’s 67 counties, according to Women’s Law Project senior staff attorney Sue Frietsche.
“If you lived in a county where you couldn’t file a second-parent adoption, your options were really limited,” Frietsche said. “You had to cobble together protections for your family with a whole series of legal documents that didn’t really do the job as well — guardianships, wills, powers of attorney. But nothing truly created the full set of parental rights and responsibilities you get with adoptions. In the eyes of the law, you may still be seen as a stranger to your child.”
In 1998, a Lancaster County court denied Barbara Fryberger’s petition to legally adopt her partner Carole’s twin sons, whom Carole had conceived via in vitro and given birth to the previous year. The following year in Erie County, Jeff Grego’s efforts to formally add his partner Joey as a second parent for his daughter and son were similarly rejected.
The two families joined in a lawsuit, charging that the state’s Adoption Act does not preclude same-sex couples from second-parent adoptions.
In 2000, however, the Superior Court ruled against the plaintiffs in an en-banc decision, with the full court considering the issue. The ruling prohibited second-parent adoptions for unmarried couples throughout the state, and counties that had previously sanctioned such arrangements were temporarily halted.
The plaintiffs took the case to the highest court and were eventually victorious, with a unanimous ruling that overturned the lower-court finding. In his opinion, Chief Justice Stephen Zappala called the Superior Court’s ruling “absurd” a number of times.
“There is no language in the Adoption Act precluding two unmarried same-sex partners (or unmarried heterosexual partners) from adopting a child who had no legal parents,” Zappala wrote. “It is therefore absurd to prohibit their adoptions merely because their children were either the biological or adopted children of one of the partners prior to the filing of the adoption petition.”
The ruling argued against the idea that second-parent adoptions would lead to unregulated adoptions by noting that all adoption petitions would still be subject to a court’s determination of the best interests of the child.
In the days before the ruling came down, Frietsche wrote up two press releases — one expressing disappointment and another sharing in the “ecstatic” aftermath of the ruling.
“We had them both prepared and didn’t know which one we were going to have to go with,” she said. “Then to get the decision and for it to be a unanimous reversal of an en-banc decision was just extraordinary.”
Biancheria said that, throughout the case, she was hopeful, but not overly optimistic, for such an outcome.
“You’re never sure what kind of person you’re going to have making these decisions, because if you have the wrong kind of person they’re going to make the wrong decision regardless of the law,” she said. “So I have to give credit to the Pennsylvania Supreme Court for seeing past anything but the law.”
She added that the ruling allowed couples the peace of mind to pursue a legal adoption and judges the legal backing to give their consent.
“It opened courthouse doors in counties where doors were previously closed,” she said. “It made people comfortable trying for this in counties where they couldn’t before and gave a lot of comfort to judges who were already allowing it that they were right along. It overhauled the process for the whole state.”
Attorney Tiffany Palmer, then legal director at Center for Lesbian and Gay Civil Rights who worked on the agency’s amicus brief in the case, said the ruling was “monumental” for LGBT Pennsylvanians.
“It was a huge change for LGBT families and really put Pennsylvania at the forefront of protecting children of same-sex parents,” she said. “There are not a lot of states where second-parent adoption has been made possible through a Supreme Court decision, so everyone was just thrilled. It was a huge, huge sea change for families.”
The importance of the individual protections that the approved adoptions provided for families cannot be understated, said David Rosenblum, legal director at Mazzoni Center and a founding board member of the Center for Lesbian and Gay Civil Rights.
Among the benefits of second-parent adoption, children can be more readily incorporated into a parent’s health-insurance plan, share in Social Security and workers’ compensation benefits, inherit property and be legally tied to both parents in custody or child-support issues in the event of separation or death.
“This provides recognition that this person is a parent, regardless of how the baby came into the world, and has all the amazing rights that go along with being a parent,” Rosenblum said.
In a state that provides no legal recognition to same-sex couples, second-parent adoption is even more significant.
“Regardless of the fact that Pennsylvania doesn’t recognize the relationship between the parents, an adoption can nonetheless bond them together as a family through the child,” Rosenblum said.
The ruling, Frietsche noted, put an end to a phenomenon of the “Benjamin Franklin Bridge Babies” — as LGBT parents rushed to have their children born in New Jersey, which had already sanctioned second-parent adoptions in the 1990s, to ease the adoption process.
Palmer said the Center saw a sharp influx in the number of second-parent cases immediately following the ruling and said such procedures have since become “standard practice” for LGBT families in Pennsylvania.
Rosenblum agreed that the ruling has allowed the same-sex adoption process to become more mainstreamed.
“More and more, these cases are being handled by private attorneys. It’s not too unusual anymore, which is great,” he said. “You used to have to make the argument about who you are, why you’re there, and now, since the ruling, the courts don’t have to try to figure out who you are — two moms or two dads, everyone’s recognized — and they can focus just on the best interests of the child.”
According to the Human Rights Campaign, 10 states and Washington, D.C., now have either a law on the books or court rulings that allows second-parent adoptions throughout the state.
The Frybergers and Gregos completed the adoption process shortly after the ruling.
The Frybergers’ twin sons are now 15, and the family was in attendance at a community celebration of the ruling’s 10th anniversary last weekend in Pittsburgh.
The adoption subsequently became especially significant for the Gregos, as Jeff died in a plane crash in 2005. He and Joey had been together for 24 years, and their children are now 20 and 21.
Frietsche said that, while the legal protections the ruling enabled have been significant, the deeper meaning of those protections is just as valuable.
“This gives families the serenity of knowing their parental rights are secure, and their kids are protected,” she said. “It’s meaningful legally but it’s also incredibly important emotionally to families.”