“Pennsylvania doesn’t have any statute regarding parentage,” explained Rebecca Nayak, an LGBTQ+ attorney and parent who specializes in parenting concerns and other family matters at Jerner Law Group.
“We just don’t have a law. It’s not even that our law is out of date,” she added. “We have never had a parentage law in Pennsylvania — defining who a parent is.”
Without a formal statute, parentage matters (the process of determining a child’s parents) are determined by case law — rulings made during previous cases in Pennsylvania courts.
This leaves LGBTQ+ parents and parenting hopefuls especially vulnerable — as the state lacks a clear and streamlined process for establishing the status and rights of parents who aren’t genetically related to their children.
But that could soon change. When the Pennsylvania General Assembly returns following the summer recess, a bill aimed at modernizing and securing parentage will await the attention of state senators. House Bill 350 — which offers a more comprehensive and updated framework for establishing parentage — passed in June but must be confirmed by the senate before becoming law.
The bill offers clear guidelines for establishing the parent-child relationship — including options for a voluntary acknowledgment, proceedings to adjudicate parentage, and processes for establishing parentage via assisted reproduction as well as surrogacy and donor agreements.
If passed, the new law would also mandate uniformity in the way each county must approach the process to establish parentage. For example, Nayak explained, most counties do not require people seeking a gestational carrier action — a process many LGBTQ+ people enter when they pursue surrogacy — to appear in court while others do (but a few do).
Nayak currently recommends LGBTQ+ parents pursue confirmatory adoptions (although in some counties, this is only available for married couples) to ensure parental rights of all intended parents of a child are sound.
But this process is invasive, time-consuming, and costly. Parents currently seeking confirmatory adoptions must wait until after a child is born, file a petition with the court before a hearing is set, provide specific documents — such as a marriage certificate, birth certificate, and other identification records, and complete background checks and other clearances from any states they’ve lived in during the last five years. The process often takes at least four months and costs between $2,000 and $3,000 in Pennsylvania.
A uniform parentage law would eliminate an LGBTQ+ parent’s need to adopt their children. Parents could instead sign a voluntary acknowledgment of parentage — which Nayak described as a notarized form which would hold the same weight as a court order. This reduces costs, paperwork and time compared to current adoption proceedings.
Currently, both people in a married couple (LGBTQ+ or otherwise) are generally presumed a child’s parents if a child is born during a marriage, but this is tricky territory for a variety of reasons — including for families who use assisted reproduction technologies.
“The marital presumption is not as reliable in Pennsylvania as I would like it to be — because our case law says that the presumption that a child born to a marriage is the child of both parties to that marriage only applies while a marriage is intact,” Nayak noted, highlighting that additional complications that can emerge if parents are divorced before a birth.
An upcoming Pennsylvania Supreme Court hearing could set a new precedent for establishing parentage as it relates to intent. A formerly married couple conceived a child via in vitro fertilization using a sperm donor — naming the non-birthing spouse (Nicole Junior) as the child’s intended co-parent in a series of contracts with medical providers. But when the couple split up during the later months of that pregnancy, the birthing parent (Chanel Glover) no longer wanted Junior to co-parent.
A superior court ruled in favor of Junior but the state supreme court could see things differently. The hearing takes place on Sept. 11, which might bring a decision by the end of the year.
“We certainly have case law that says that people who don’t have a genetic connection to a child can still be a parent. And then also, the opposite is true — that someone who does have a genetic connection to a child is a donor, [for example],” Nayak said, noting that current precedent offers guidance that is supportive of LGBTQ+ parents.
“While our case law has shaped up pretty good, it’s still case law. Case law could always be changed by the next court decision,” she underlined.
This bill and other bills pertaining to parentage in Pennsylvania have been introduced, studied, and argued in the past — and have always stalled, but Nayak believes HB 350’s supporters have gained stronger momentum this session. She underlined the need to reach out to state senators to share about why the bill is important to LGBTQ+ parents.
“This would be a real opportunity to make sure that our laws are clear about who has a legal connection to a child — so that kids are not vulnerable, that they’re protected by making sure that they have their supportive parents and the ability for their parents to maintain a connection with them,” she emphasized.
