Pittsburgh Same-Sex Adoption Lawyer

There is little doubt that some states continue to deny equal protection to same-sex marriages as the state affords marriages for heterosexual couples.  This denial of equal protection is especially evident when considering birth rights of babies born to same-sex couples.

The most recent US Supreme Court case involving same-sex couples was decided in Pavan v. Smith, 582 U. S. ____, 137 S.Ct. 2075 (2017). In this case, Leah and Jana Jacobs were married in Iowa in 2010 and Terrah and Marisa Pavan, were married in New Hampshire in 2011.  Both same-sex couples, Leigh and Terrah each gave birth to a child in Arkansas in 2015, and each couple completed the requisite paperwork for birth certificates for the newborns listing both spouses as parents: Leigh and Jana in one case, and Terrah and Marisa in the other. The Arkansas Department of Health refused to recognize the non-biological same-sex spouses’ rights and, instead, issued birth certificates bearing only the birth mother’s name citing a provision of Arkansas law, Ark. Code 20-18-401

The Jacobses and Pavans both filed a lawsuit in Arkansas state court against the director of the Arkansas Department of Health seeking a declaration that the state’s birth-certificate law violates the United States Constitution. The trial court agreed with the couples, holding that the state statute is inconsistent with the US Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). The Arkansas Supreme Court reversed the trial court.

On appeal to the US Supreme Court, the United States Supreme Court held that a state law that precludes same-sex couples from having both spouses’ names on a birth certificate violates the Due Process Clause and the Equal Protection Clause under Obergefell v. Hodges. The Court held that the Arkansas rule functionally deprives married same-sex couples the same rights to be listed on their children’s birth certificates as enjoyed by married heterosexual couples. Not being listed on a child’s birth certificate can significantly affect a parent’s ability to participate in that child’s health care, education, upbringing and situations that require proof of parentage. Therefore, the Arkansas rule was held to unconstitutionally discriminate against married same-sex couples by denying them access to the same rights, responsibilities, and benefits that married opposite-sex couples have.

The US Supreme Court made the ruling it did because the Arkansas law violated a key tenet of Obergefell v. Hodges: “the Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples.” This is likely why Chief Justice John Roberts joined the majority opinion in Pavan v. Smith, even after dissenting in Obergefell v. Hodges. See also McLaughlin v. Jones in and for County of Pima, 243 Ariz. 29, 401 P.3d 492 (2017) (statutory marital paternity presumption cannot be restricted to only opposite-sex couples).  While a person’s sexual orientation certainly does not change his or her ability to raise a family, laws and policies concerning same-sex adoption have yet to be implemented uniformly applied across all states despite thePavan and Obergefell decisions.

Fortunately, the Pennsylvania Department of Health has recently updated their policies relating to birth certificates to include all families and reflect the fact that same-sex marriage is the law of the land in Pennsylvania.  According to PA Department of Health spokesman J.J. Abbott, “Gov. Wolf continues to support making government more respectful of all families and will continue to ensure state government treats all families with the dignity that they deserve.”

However, having both same-sex married spouses listed on the birth certificate of a child born during their marriage does not necessarily end the legal hurdles.  To solidify the same-sex married couple’s maternity or paternity rights, the biological father’s or mother’s rights (whether obtained through a known or anymous donor) must be terminated and a step-parent adoption processed through the Orphans’ Court.  In Pennsylvania, same-sex couples can complete a  step-parent adoption (sometimes also referred to as a second parent adoption) so that the spouse who is not the biological parent can become the legal parent thereby estinguishing all legal rights by sperm or egg donor.

Second Parent Adoptions are an important tool for LGBT families because they provide substantial benefits and protections not otherwise provided by law:

For children of LGBT parents:

• Second parent adoptions enable the child to be eligible as a dependent for the non-biological parent’s health and life insurance benefits.
• Children adopted by second-parent adoption are vested with the same inheritance rights and rights to federal benefits with respect to their non-biological parent as if they were biological children. Accordingly, if the adoptive parent dies without a will or becomes disabled while the child is a minor, the child the same inheritance scheme would apply as for all biological children and the child would likewise be eligible for Social Security benefits as a result of their parent’s death or disability.

For the non-biological parent:

• Absent a second parent adoption, a non-biological parent could lose all rights to the child if the biological parent dies or the partnership ends while the child is still a minor.
• Second parent adoptions provide the formal paperwork that is sometimes required to make medical decisions on behalf of a child. In some instances, LGBT parents who have not completed the step parent adoption process have been foreclosed from even visiting with the child in the hospital on the basis that they are not considered “family members.”

Because the law regarding same-sex marriages has changed and same-sex couples are now permitted to marry, a stepparent adoption can be completed to alleviate any paternity or maternity issues.

Contact Our Pennsylvania LGBT Adoption Attorneys Today

Contact our Pittsburgh LGBT step-parent adoption lawyers to speak with one of our experienced Allegheny County adoption lawyers and learn how we can help you formalize your spouse’s legal rights through adoption. You may also telephone our PA adoption law firm in Pittsburgh at (412) 231-9786, Southpointe (Canonsburg, Washington County) at 724-436-5500, Cranberry Township (Butler County, PA) at 724-776-9906 or toll-free at 1-844-VARI-LAW.

Appointments may also be available in other meeting locations throughout Western Pennsylvania upon advance arrangements with our office. Ask the secretary scheduling your appointment for details including appointment locations.