All across the United States, alternative families are queering the American dream. In a new take on traditional household arrangements, “Daddy” and “Papa” trade off walking the dog, driving the kids to soccer practice and juggling household chores. However, there is complexity hidden in the mundane — it is unlikely that this idyllic snippet of family life came so easily into being.
While many heterosexual couples take for granted the ability to conceive their own children, same-sex couples know just how difficult it can be to expand their families. A single episode of ABC’s hit show “Modern Family” portrays the heartache of a failed adoption attempt, when same-sex partners Mitchell and Cam drive for hours to pick up a new baby boy, only to find that his birth mother has changed her mind. While it is true that the process of bringing new children into the family can be daunting and disheartening, it is entirely doable and completely worth the work.
Family expansion is not “one-size fits all.” Some same-sex parents will go through the traditional adoption process, finding a child through an agency. Some parents choose a closed adoption process while others prefer an open adoption. Others still might choose to use a sperm bank or gestational carrier. In those situations, one partner is typically a biological parent, while the other can attain their parental rights through a second-parent kinship adoption.
No matter which path you choose, it is imperative to familiarize yourself with the laws of your state. If you use a donor or a carrier, you should carefully investigate what rights the donor could potentially have over the resulting child. Many same-sex parents are surprised to find that donors actually retain rights in some states depending on how the conception takes place.
Not surprisingly, Pennsylvania’s laws are somewhat ambiguous. While, 20 years ago, Pennsylvania recognized the right of same-sex parents to adopt, it has not clarified some of the complications that seem to attach to the variety of possibilities for same-sex family expansion. For example, if two women ask a male friend to be their sperm donor, and the insemination occurs outside the walls of a licensed facility, the male friend will retain parental rights.
On the other hand, if the insemination occurs within a licensed facility, and the male friend has contracted away his rights, he will have no claim to the child. Essentially, courts in Pennsylvania look to see just how closely a particular conception mirrors natural biological processes versus processes occurring at a sperm bank or in-vitro fertilization facility. Ferguson v. McKiernan, decided in 2007 by the Pennsylvania Supreme Court, actually honored a verbal contract between the mother and the donor because it found that it was the “parties’ mutual intention to preserve all of the trappings of a conventional sperm donation, including formation of a binding agreement.”
However, it is not advisable to have your sperm or egg donor verbally waive their parental rights. Couples interested in using known donors should retain legal counsel to assist in composing and executing binding agreements. Couples using gestational carriers should also consult counsel about drawing up a pre-birth order to ensure that both of the parents’ names will automatically appear on the child’s birth certificate.
Parents in Pennsylvania who adopt from an agency will not need to go through these steps. However, they will have to jump through more hoops during adoption proceedings than the non-biological parents seeking a second-parent kinship adoption. The adoption process itself will also be more expensive and intrusive. For example, parents who are adopting a non-biological child will have to undergo both pre- and post-adoption home studies, allowing social workers to come in and evaluate the environment in which they wish to raise the child, as well as the parties who reside there. They will also have to pay fees to the adoption agency. In contrast, second-parent kinship adoptions only require a single home study. Since the child is born into the family, there are no agency fees to pay. All prospective parents, however, will be subjected to extensive questioning about their past, personal lives and beliefs. They will also have to submit to multiple background checks from different agencies.
While Pennsylvania follows the Pennsylvania Adoption Act under Title 23, each county has its own set of particular requirements. For example, while some counties exempt the biological parent from undergoing the background checks required of the adopting partner and other household members, Philadelphia law states that even the biological parent must pass a Pennsylvania criminal record check and child abuse clearance, FBI check and a certification from the Statewide Child Abuse and Neglect central registry from any state in which they resided within the previous five-year period. These checks should be obtained at the beginning of the adoption proceedings regardless of the county in which you reside.
While this is clearly more work than what heterosexual families go through, the legal power of a second-parent adoption is irreplaceable. In the event that your partnership should dissolve, your parental rights will be treated equally as the birth mother. Additionally, your ability to make important medical, educational and custodial decisions for your child will be assured. You will be able to put your child on your health care, and they will be automatically entitled to collect benefits in the event of your death. Lastly, should you die without a will, they will receive assets from your estate. These rights are of immeasurable value when planning for the security and happiness of your family. And while the steps to secure them are alien to the traditional “American family,” it makes that same dream a reality for same-sex families everywhere.
Angela Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Send Angela your legal questions at [email protected].
