The LGBTQ community has celebrated tremendous victories over the past few years, including marriage equality, bringing couples access to hundreds of rights and benefits previously out of reach. However, marriage equality has not resolved the issue of parental rights for LGBTQ parents.
Many people think that marriage equality also means parentage equality, believing that both spouses are the legal parents of any child born during a marriage. But the laws surrounding legal parentage are incredibly complex. Parental rights come from state laws, which vary widely from state to state. While some states recognize a “marital presumption,” where it is presumed that a non-genetically related spouse is a legal parent to a child, other states do not have this presumption. Some states recognize the marital presumption in some circumstances but do not apply it to children conceived through assisted reproduction. Additionally, the marital presumption may not apply if a relationship is no longer intact, such as in the event of separation or death.
No appellate court in Pennsylvania has addressed whether a martial presumption applies to children of same-sex spouses or to a scenario involving a child conceived through assisted reproduction. Therefore, it remains to be seen if Pennsylvania courts will apply the marital presumption in these situations.
New parents take comfort when a non-genetic parent’s name appears on a child’s original birth certificate. Most states, including Pennsylvania, will issue an original birth certificate in this way, based on how the birth parent completes the forms at the hospital when the baby is born. However, a birth certificate is not a legal determination of parentage. Instead, a birth certificate is an administrative record of what a birth mother reports at the time of a child’s birth. It can be changed or amended if the information is determined to be incorrect in the future. For example, if, through DNA testing, the spouse of the birth parent is found not to have a genetic connection to the child, that spouse’s name can be taken off the birth certificate. This poses a real risk for LGBTQ families who conceive with donors where only one of the parents has a genetic connection to the child.
For the past 18 years, I have been representing LGBTQ parents in court, in good times and in bad. Divorce and break-ups can often be difficult, but when cis-gender privilege and genetic privilege are leveraged as weapons in a playing field where the law is still evolving or uncertain, it can be devastating. It may even result in the separation of a parent from a child they have loved and raised for many years. One of the greatest threats to the rights of LGBTQ parents comes from within our own community, when marriages end or when couples break up and a genetic parent challenges the spouse’s status as a parent to the child they had together. It can also come about if the genetic parent dies or becomes disabled, leaving the non-genetic parent to battle the extended family of the genetic parent for custody or even the federal government for Social Security benefits.
Even in this post-marriage-equality legal landscape, I still have clients facing litigation challenging whether they even have the right to file for custody of the child that parent raised just because that parent does not have a genetic relationship to the child. This is still happening even where that person is married to the birth parent and even if they are listed as a parent on the child’s birth certificate. A legal challenge to a person’s parental rights can be devastating, both emotionally and financially.
However, there is a simple and relatively inexpensive way to conclusively establish the legal rights of non-genetic parents and to avoid (or at least greatly minimize) the costly legal battles that can occur in the event of divorce or a death of a parent: Obtain an adoption decree. Adoption decrees are conclusive determinations of legal parentage and, as the U.S. Supreme Court made clear in March 2016 in the case V.L. v. E.L., adoption decrees must be given “full faith and credit” under the United States Constitution, meaning they will be recognized in all 50 states and by the federal government. Adoption decrees are permanent and cannot be changed or undone. This is why every major LGBTQ-rights organization is still recommending that even married LGBTQ parents confirm their parental rights through adoption and that those families do not rely on marriage alone for parental-rights recognition.
While attorneys continue to advocate for the rights of LGBTQ parents and while the complexities of assisted-reproduction laws and parental rights weave their way through the courts, you have the power now to protect your family from ever being placed in question.
You may find a qualified attorney through the Academy of Adoption and Assisted Reproduction Attorneys: http://www.adoptionattorneys.org/aaaa/home.
Tiffany L. Palmer is a partner and founding member of Jerner & Palmer, P.C., in Philadelphia.