Question: How does a lesbian couple in Pennsylvania who conceive via assisted reproduction create a legal relationship between the non-biological mother and the child?
Answer: In Pennsylvania, second-parent adoption is the only way to secure legal rights for a non-biological mother.
Question: Is a "pre-birth order" possible in Pennsylvania for all lesbian couples in Pennsylvania who conceive via assisted reproduction to create a legal relationship between the non-biological mother and the child?
Answer: No.
Second-Parent Adoption:
Second-parent adoption is the adoption of a child by the partner of a biological parent or a legal parent (in the case where one parent has previously completed a single-parent adoption of the child). A second-parent adoption allows a second parent to adopt a child without the "first parent" losing any parental rights.
Adoptive parents have the same rights as biological parents and final adoption decrees are recognized in every state. Second-parent adoption is not allowed in all states, but is available in all counties in Pennsylvania. Second-parent adoption creates a legal parent-child relationship with the second parent, bringing with it hundreds of rights and benefits including inheritance, custody, child support and medical decision-making. One of the most important financial benefits of completing a second-parent adoption is ensuring that your child is able to receive social security survivor benefits from either parent in the event of a death of the parent. Without a second-parent adoption, the child is only eligible for these benefits from the biological parent. These benefits could be thousands of dollars per month until the child turns 18.
A Pennsylvania Supreme Court case in 2002 made the right of second-parent adoption available statewide. See In Re: Adoption of R.B.F. & R.C.F. You can read the opinion of the Court here.
To learn more information about second-parent adoption, such as cost, timing and the process, read an interview with Attorney Tiffany Palmer here.
As of 2011, if you complete a second-parent adoption, all eligible costs of that adoption may be deducted from your tax liability through the adoption tax credit. Expenses that qualify for the adoption credit are all reasonable adoption fees, court costs, attorney fees, home study fees, traveling expenses, and other expenses directly related to the legal adoption of a child. For many individuals, if your adjusted gross income is less than $182,520, the entire cost of your adoption may be refunded to you through the credit. Consult your tax adviser or see IRS Form 8839 for more information about the adoption tax credit and to determine if you are eligible.
Pre-Birth Orders:
In some states, same-sex couples are able to file a court action before the birth of a child conceived via assisted reproduction to obtain a "pre-birth order" as a court determination of parentage prior to the birth. This is typically only in states that have statutory laws governing assisted reproductive technology, such as states that have adopted the Uniform Parentage Act or in states that allow same-sex marriage and, therefore, consider the children born of the marriage to be the legal children of the married couple. However, Pennsylvania does not have any statutory laws governing assisted reproductive technology and has not adopted the Uniform Parentage Act. Pennsylvania also does not currently recognize out-of-state same-sex marriages due to the Pennsylvania Defense of Marriage Act. Therefore, there is no legal basis in Pennsylvania to grant a pre-birth order determining parentage to create a legal parent-child relationship between a non-biological parent and the child her partner is carrying.
The only mechanism in Pennsylvania for pre-birth order is through a Gestational Carrier Action. A Gestational Carrier Action involves a woman who is pregnant with a child that is not genetically related to her, serving as a gestational carrier or surrogate for another person or couple who intend to be the parents to the child. The gestational carrier does not provide a genetic contribution (egg) to the pregnancy, but is impregnated via IVF with an embryo that was conceived through a donated egg and sperm. A gestational carrier typically receives monetary compensation for her services and reimbursement for expenses and these arrangements are entered into through a careful screening process and a written contract.
The Pennsylvania Department of Health has developed a procedure for courts to issue pre-birth orders for children conceived through gestational surrogacy, known as the Assisted Conception Birth Registration Process. The Department of Health defines assisted conception as in a Directive issued in 2004 as: "The implantation of a woman’s fertilized egg into another woman (the gestational carrier) who carries the child during gestation and delivers the child." It was created to address situations where a woman is pregnant with a child that is not genetically her own. The Directive states that a court order is needed for the intended parents’ names to be listed on the certified copies of the child’s birth certificate.
Lesbian couples have only been able to use the Gestational Carrier Action process in cases where one partner is acting as the gestational carrier for the couple and is pregnant with a child conceived using the egg of the other partner. Therefore, the partner who is pregnant is not the genetic parent of the child, but her partner is the genetic parent of the child. It should be noted that the decision to grant a pre-birth order is always at the discretion of the judge hearing the case and these order are not available statewide.
Currently, pre-birth orders are issued on a county-to-county basis at the discretion of the judge. Pre-birth orders have been issued for both same-sex and opposite-sex intended parents who conceive children through gestational carrier arrangement. With respect to gestational carrier actions, the process involves the submission of contracts and affidavits to the Court prior to the birth of a child to have a legal determination of parentage and to confirm that the woman carrying the child is not a genetic parent. The decree clearly confirms that the gestational carrier is not a parent and no adoption action is required.
The adoption tax credit is not available for legal and other costs related to obtaining a pre-birth order. Furthermore, the recognition of pre-birth orders in all states is a largely untested area of law.
If you live in Pennsylvania and are trying to determine whether your situation qualifies as eligible for a pre-birth order, consult with an attorney at Jerner & Palmer, P.C . or with another attorney experienced in the complex area of assisted reproductive technology law, such as a fellow of the American Academy of Assisted Reproductive Technology attorneys.
For more information call us at (215)843-6000 or at (856)817-6030 or fill out our Contact Form.
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