It has been a decade since recognition of marriage for same-sex couples began in Pennsylvania, and nine years ago this week, that same-sex marriage gained nationwide recognition with the historic 2015 U.S. Supreme Court decision in Obergfell v. Hodges, 576 U.S. 644. As we discussed in a previous article, since 2016, the Pennsylvania Department of Health has had guidelines advising hospitals that when a woman married to another woman gives birth, both spouses should be listed as parents on their child’s birth certificate. However, as a number of courts have noted, a birth certificate only creates a rebuttable presumption of parentage and, depending upon the state, could be subject to challenge in court. It is because of this uncertainty that attorneys who work with LGBTQ couples and their families consider it important for LGBTQ couples who become parents to obtain a decree of second parent adoption (also called a decree confirming parentage). The U.S. Supreme Court, in a 2016 case, V.L. vs E.L., 577 U.S. 404, held that under the Full Faith and Credit clause in the U.S. Constitution, every state must respect an adoption decree from any other state. By having such a court decree, LGBTQ couples are protected from legal challenges to their parentage no matter in which state they may be living or traveling.

In Pennsylvania, there is now a new wrinkle for LGBTQ couples in obtaining such an adoption decree. Under Pennsylvania’s adoption law, the general rule is that for a child to be adopted, the parental rights of the natural parent or parents must be terminated unless there is good cause shown. One exception is that if a natural parent’s spouse is adopting the child, that natural parent may retain parental rights. Another exception lies in the “cause shown” language in the Pennsylvania Domestic Relations Code. For a number of years, same-sex partners who had a child together, such as two women who were partners and one gave birth to a child, could seek to have the other partner adopt the child. In the 2002 decision In re Adoption of R.B.F, 569 Pa. 269, 803 A.2d 1195 (2002), the Pennsylvania Supreme Court ruled that a couple should be permitted to prove why they could not meet the general statutory requirement that they be married to each other as a condition for the natural parent not being required to relinquish parental rights. At that time, the couple could not legally marry so it was clear that they were unable to comply with that statutory requirement which constituted a “cause shown.”

In 2023, some change occurred in this legal landscape with the case, In re Adoption of M.E.L.,298 A.3d 118 (Pa. 2023). In that case, the mother of the child sought to terminate the parental rights of the child’s father and to have her female long-term partner adopt the child. The mother and her partner were not married. The Supreme Court of Pennsylvania affirmed that the mother and her partner would have to prove, if they could, a satisfactory reason as to why they could not marry. This was no longer a self-evident matter since same-sex marriage had been legally recognized in Pennsylvania. The Court’s opinion recognized that the general relinquishment of parental rights requirement for adoption and requiring marriage for one of the exceptions might, to some, appear anachronistic in a time when there are many different forms of family but that changing those requirements had not been taken up by the Legislature and are thus still the law.

The bottom line for LGBTQ couples who are parenting children together is that obtaining an exception to the requirement for marriage to be exempt from the natural parent relinquishing parental rights, if not completely gone, is much narrower now. Whereas it was once impossible for LGBTQ couples to marry, they now have the same ability to marry as heterosexual couples. Unless and until the Legislature changes the law, LGBTQ couples parenting children together who want full legal protection for the parentage of both parents will have to decide if they want to get married to be able to obtain that protection and to weigh that choice against reasons they may have as to why they are not marrying.

If you have questions, or would like additional information, please contact Steve Asbel, Partner in Reger Rizzo & Darnall’s Wills, Trusts & Estates Group, at 215.495.6513, or via email at sasbel@regerlaw.com.