Paternity and Parentage in Same-Sex Marriages

Posted: July 14th, 2015 by

Jennifer Dumin and Lisa Shapson, The Legal Intelligencer

One year and one day after same-sex marriage became legally recognized in Pennsylvania, some friends exchanged vows. These newlywed wives want a child and are planning to start trying in the fall, with one as the birth mother, using anonymous donor sperm. I got a call from the to-be birth mother, asking the question on a lot of same-sex couples’ minds these days:  “Now that we’re married, will my wife automatically be legally recognized as one of the two mothers of our child or will she need to adopt our baby?”

From a practitioner perspective, the answer is easy:  Better safe than sorry. Proceed with an adoption. “But she’s going to be listed on the birth certificate as the second mother. Isn’t that enough?” A nonbirth mother may be listed on the child’s birth certificate as the second parent regardless of whether the mothers are married to each other, but this is not dispositive as to parentage. Similarly, in the case of unmarried opposite-sex parents, the fact that the father’s name is listed on the birth certificate is not conclusive proof of paternity. This makes sense, as there is no requirement that a father sign an acknowledgment of paternity form in order to have a birth certificate issued. An unmarried mother has the option of naming whomever she wants to be the other parent on the child’s birth certificate, or she can leave that part of the form blank. So, in cases where opposite-sex parents are not married when the mother becomes pregnant or when the child is born, the child does not have a legal father until paternity is established, either by filing an acknowledgement of paternity or by court determination of paternity.

For the purposes of this article, we are restricting our discussion of same-sex parents to those in which both spouses are legally recognized as female, irrespective of sex assigned at birth or gender identity, and where one of the two is the birth mother. Clearly, in all circumstances where there is a surrogate birth mother, such as is the case with same-sex parents who are both male, and neither is a transgender male who is the gestational parent, obtaining a court order adjudicating parentage is unavoidable.

Conclusive evidence of paternity can be rather effortlessly established by the father signing an acknowledgement of paternity in the hospital or at a later time. There is no parallel document such as an acknowledgment of maternity, and simply listing the nonbirth mother on the birth certificate is not sufficient. So, for married same-sex female parents, a second-parent adoption is currently the only infallible method for protecting against any challenges to the nonbirth mother’s parentage that may arise.

From a civil rights perspective, the answer to the question of whether a second-parent adoption is a necessary step for same-sex married couples is more complex:  If recognition of same-sex marriage is meant to extend all of the rights and responsibilities associated with opposite-sex marriage, shouldn’t all policies and practices that legally create and protect families apply to everyone?

One  of  the  benefits  of  marriage  for opposite-sex couples with children lies in Pennsylvania’s paternity laws. When issues of paternity are raised regarding these parents, the court applies the legal fiction known as the doctrine of the pre-sumption of paternity. The Pennsylvania Supreme Court has stated, “The pre-sumption of paternity embodies the fiction that regardless of biology, the married people to whom the child was born are the parents,” in Brinkley v. King, 549 Pa.241, 701 A.2d 176, 180 (1997).

There are many ways in which children born of opposite-sex marriages benefit from this presumption of paternity, automatically having two parents with legal status. These children are eligible for health benefits from both parents. Both parents can provide consent for medical care should the children become ill. If one parent dies or becomes incapacitated, the surviving parent can continue to parent the children without facing potential challenges to custodial rights that nonparents may face. These children are eligible for Social Security survivor benefits for the death of a parent. They have intestate rights. If the parents separate or divorce, these children benefit from the financial and custodial support of two parents. The paternity presumption, despite being a legal fiction, is nonetheless an effective practice for legally recognizing two parents, giving all of these benefits to children and their families.

So, where does this leave those friends, who want their child to enjoy all of the benefits of having two legally recognized parents? Fortunately, Pennsylvania has allowed same-sex second-parent adoptions since 2002, per In re Adoption of R.B.F. and R.C.F., 803 A.2d 1195 (Pa. 2002). Unfortunately, in practical terms, this means shelling out a few thousand dollars in legal fees and undergoing scrutiny of their personal lives with home studies in order to have the same protections that opposite-sex married couples are automatically granted based solely upon their marital status.

In order to ensure that all families in Pennsylvania are treated equally under the law, and to protect the best interests of all of our children, the need for change is clear. Recognition of same-sex marriage was meant to extend all of the rights and responsibilities associated with opposite-sex marriage to these families. In order to accomplish true equality, practical changes must be made to allow these intended families to have the same legal recognition of parentage, regardless of the gender identity of the parents, including the same parental rights and responsibilities should the parties divorce.

In the courtroom, the paternity presumption should be expanded to a presumption of parentage, applicable to nonbirth mothers in same-sex marriages, so that their parentage can be protected from the date of birth of their child without the necessity and expense of a second-parent adoption. Additionally, expanding the legally binding acknowledgement of paternity form to be usable as an acknowledgment of maternity, or simply of parentage, would be an easy, cost-effective way to actualize full equality under the law.

Reprinted with permission from the JULY 14, 2015 issue of THE LEGAL INTELLIGENCER (Family Law Supplement). © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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