Stephen M. Asbel of Reger Rizzo & Darnall.

Recognition of same-sex marriage nationwide in the historic 2015 U.S. Supreme Court decision, Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015) was a huge step forward for the LGBTQ community, but many steps remain in the United States toward achieving full equality. Among the crucial areas where same-sex couples require legal assistance is establishing and protecting parental rights.

When married straight couples have a child, the legal default is that both the husband and wife are recognized as the legal parent for all purposes. However, that is not always the case when a child is born to a married same-sex couple. In the case of a two-woman couple, the woman who gives birth will be legally recognized as a parent, but that is not necessarily true for her wife.

Since 2016, the Pennsylvania Department of Health has issued guidelines advising hospitals that when a woman married to another woman gives birth, both spouses should be listed as parents on the child's birth certificate. However, the listing of both spouses on a birth certificate alone may not provide all necessary legal protections. Uncertainty remains about what is the extent of legal protection created simply from being named on the birth certificate. What if the couple moves to another state that will not recognize the wife as a parent for all purposes? What if the couple separates or divorces and the mother who gave birth decides to contest parental rights? Suppose the wife who is not the biological mother dies—would government or other benefits for children apply to that parent? What if the biological mother dies and her family decides to contest the wife, who is not the biological mother, retaining custody? Would she enjoy the usual presumption that a parent is to be preferred by a court for custody over a nonparent? The state in which the child is residing could also have a lot to do with the result of such a case. As one New York court has stated, “A birth certificate is however only prima facie evidence of parentage and does not, in and of itself, confer parental rights that must be recognized everywhere,” see Matter of Sebastian, 879 N.Y.S.2d 677 (2009).

Some states have resisted implementing equal rights and protection for married same-sex couples. For example, Arkansas refused to list the wives of women who gave birth to babies conceived by artificial insemination as parents on the birth certificates. The Supreme Court in Pavan v. Smith, 137 S. Ct. 2075, 198 L. Ed. 2d 636, (2017) held that the Arkansas policy was unconstitutional as it denied married same-sex couples the “full constellation of benefits that the state has linked to marriage” to which the court had ruled they were entitled in Obergefell. On the other hand, in Pidgeon v. Turner, 538 S.W.3d 73, 60 Tex. Sup. J. 1502 (2017); cert. denied Turner v. Pidgeon, 138 S. Ct. 505, 199 L. Ed. 2d 385 (2017), several residents of Houston, Texas sued the city of Houston challenging its policy of extending employees with same-sex spouses the same benefits as employees married to persons of the opposite sex. The Texas Supreme Court ruled in 2017 against the city and in favor of the plaintiffs challenging the policy taking the view that the Supreme Court in the Obergefell decision did not hold that the same publicly funded benefits had to be provided to all married persons. The Supreme Court, this time, declined to decide the case and denied cert.

Further complicating the situation is the variety of approaches that courts in different states have taken regarding the application of a presumption of parentage when a woman who gives birth is married to another woman. An informative examination of these different approaches is presented by Paula A. Monopoli of the University of Maryland School of Law in “Inheritance Law and the Marital Presumption after Obergefell,” 8 Estate Planning & Community Property Law Journal 437 (2016). For example, in Q.M. v. B.C., 995 N.Y.S. 2d 470 (2014) which involved a woman who gave birth to a child and was married to another woman at the time of the birth, but the spouse had not adopted the child. There, the court held that the presumption of legitimacy under New York statutes did not preclude a man claiming to be the biological father of the child from pursuing a paternity claim. The court held that New York's marriage equality law did not require a court to ignore the biological differences between husbands and wives in the case of a known biological father, thus distinguishing that situation from one in which a child is fathered by an anonymous sperm donor.

In Gartner v. Iowa Department of Public Health, 830 N.W.2d 335, (Iowa 2013), the Iowa Supreme Court addressed application of the Iowa statute, which provided that if the mother of a child were married at the time of conception, birth or at any time in between, her husband would be presumed to be the father and his name entered on the birth certificate unless paternity was determined otherwise by a court of competent jurisdiction. The Iowa Supreme Court found it to be a violation of the state's constitution to limit this presumption to only a male spouse of the woman giving birth and ordered that the Department of Public Health must apply the same parentage presumption for married lesbian couples.

Monopoli proposes reform of the marital presumption of parentage to shift from a concept based upon biology to one based upon consent such that every spouse of a woman who gives birth to a child is presumed to consent to a child born during the marriage and intends that child to be his or hers, unless there is evidence to rebut the presumption of consent—evidence of deception could rebut the presumption. Such a consent-based presumption would enable the application of a marital presumption of parentage regardless of the gender of the spouse. For such a rule to provide certainty to all married same-sex couples, it would have to be adopted in every state, which seems unlikely in the current political environment in the short term.

Given all of the above-described legal uncertainties, same-sex couples should not just rely on a birth certificate to protect their parental rights; but instead need to establish a stronger documented legal claim of parentage. Until there is uniform legislation or a uniform legal standard across the country, providing all necessary protections, the gold standard for protecting parental rights in two-mother families is second-parent adoption. While some states may be resisting implementing the full meaning of Obergefell, it is well established that adoption decrees of one state must be respected by other states. In V.L. v. E.L., 136 S. Ct. 1017, 194 L. Ed. 2d 92 (2016), E.L. was a woman who gave birth to three children through assisted reproductive technology. E.L and V.L. were in a relationship from 1995 until 2011. The two women had raised the children from birth. The two women decided that V.L. should have legal status in her parental relationship with the children, so they petitioned for and were granted a decree of adoption in Georgia. When the women separated in 2011, they were living in Alabama. When the two women were in a legal dispute over custody of the children, E.L. argued that the Alabama courts should not recognize the Georgia adoption decree. The Alabama Supreme Court ruled that the Georgia courts had lacked subject matter jurisdiction to grant the adoption in the first place. The Supreme Court ruled in 2016 that the adoption decree of one state must be respected by other states under the Full Faith and Credit clause of the U.S. Constitution. The Supreme Court held that the Alabama courts went too far in inquiring into whether Georgia had jurisdiction to grant the adoption decree; such inquiry had to be limited to whether the court of the other state was competent to hear and decide such cases and in this case, the Georgia court, under Georgia statute, did have such jurisdiction. Therefore, Alabama was required to give full faith and credit and to accept the adoption decree from Georgia.

Second-parent adoption (sometimes called “stepparent adoption” or “co-parent adoption”) is a long-established legal procedure in which the spouse of a biological parent adopts the child as their own while the biological parent retains the same parental rights and responsibilities they had before.

In Pennsylvania, if the parents are married, a professional home study is not required as would be the case in a “third-party” adoption where neither parent has a prior parental relationship to the child. However, they are required to go through criminal background, child abuse, and FBI record clearances and provide the same documentation as are required in any other type of adoption. Commonly, no consent of a biological father is required since the biological father is an anonymous sperm donor.

Once the adoption is complete, both parents have equal parental rights confirmed by a court order that is to be recognized by any state. Even if the couple separates or divorces, the legal parental relationship remains. Government or employment benefits that the adoptive parent has will benefit the children without having to worry about whether a state or local government fully implements Obergefell's recognition of same-sex marriage because there is a court order stating that both spouses are parents of the child.

For two-male couples having a biological child, they would be more likely to be using the legal processes related to gestational carriers (surrogates) where it is necessary to obtain a pre-birth order to confirm that the couple will be the legal parents and to confirm that the woman acting as the gestational carrier does not have any parental rights related to the child. For such a process to be available, it is crucial that the gestational surrogate is not biologically related to the child and thus the egg used for conception should come from a third-party anonymous donor. If the surrogate is the biological mother of the child (traditional surrogacy), then a second-parent adoption proceeding coupled with written consent and a petition to confirm consent of the mother to relinquish parental rights is required. It is important to note that under Pennsylvania's adoption law, consent may be revoked at any time until a judge signs an order confirming consent and even after entry of such an order, there is a 30-day period to appeal. Because of these additional steps and risks, attorneys who handle surrogacy matters strongly caution against traditional surrogacy arrangements.

It is important to note that married same-sex couples have reason to object to being required to go through an intrusive and expensive process of background checks and legal proceedings that heterosexual couples are not required to do, in order to establish both spouses as being parents of their child born into the marriage. In New York, the proposed Child-Parent Security Act would make second-parent adoptions much easier and also to authorize obtaining pre-birth orders so that legal parentage is already established at the time of birth. Pennsylvania does not at this time have such legislation. The Child-Parent Security Act would also legalize gestational surrogacy in New York; it is illegal there under existing law.

Stephen M. Asbel, a partner in Reger Rizzo & Darnall's Philadelphia office, focuses his practice in the areas of estates and trusts, corporate and real estate law. He has been working with same-sex couples for over 20 years, using the law to help them build their families. For questions or additional information, please contact us at 215.495.6523 or [email protected].