June 2, 2016- This week, the Pennsylvania Department of Health issued guidance to all Pennsylvania hospitals advising that for same-sex female couples who are married at the time one spouse gives birth, the hospital should list both spouses as the child’s parents on the original birth certificate. The guidance is a long-awaited reinforcement of a practice that had been informally in place for more than a year.
Although the Department of Health’s new guidance may come as a relief to many, it is important that married same-sex couples understand that a birth certificate is an administrative record and is not a legal determination of parental rights - especially where one parent does not have a genetic relationship to their child because the child is donor conceived.
The ACLU provided further explanation in their FAQ regarding the Department of Health’s new guidance:
“A birth certificate is not a definitive legal determination of your parenthood. Until the law in this area is more settled, all couples (same-sex or different-sex) who conceive using donors should still do an adoption in order to guarantee full legal recognition for both parents—even if you’re married, and even if you’re both on the birth certificate. The marital presumption of parentage is a legal assumption that could potentially be challenged if you do not have a biological connection to your child. Without a decree or order of adoption, some courts may not recognize a non-biological parent’s parental rights based solely on marriage and being on the child’s birth certificate.”
A full text of the FAQ by the ACLU may be found here: https://www.aclupa.org/files/4314/6480/4976/Same-Sex_Parenting__Birth_Certificate_FAQs.pdf
Echoing the ACLU’s conclusions, the attorneys at Jerner & Palmer, P.C. categorically advise same-sex married couples to pursue an adoption for any parents without a genetic connection to their child. A court order or adoption decree is, quite simply, the only way to guarantee that the law will recognize the parental rights of both spouses in all states. For more information about adoptions and/or legal issues involving assisted reproductive technology, contact Jerner & Palmer, P.C. at 215-843-6000 or at email@example.com.
For more information on marriage and parentage, see Attorney Tiffany Palmer’s March 20, 2016 blog post “Misconceptions About Marriage and Parentage in Assisted Reproduction”, available at: https://www.jplaw.com/misconceptions-about-marriage-and-parentage-in-assisted-reproduction/