business
Now That LGBTs Can Be Legally Wed in Pennsylvania,
Can ART Law Advances Be Far Behind?
BY DOROTA GASIENICA-KOZAK, ESQUIRE,
CHAIR OF THE KINGSPRY ADOPTION/ART LAW PRACTICE GROUP
I
n March, Pennsylvania Governor Tom Wolf’s Budget
Address specifically referenced the need for laws to
protect the LGBT community. As a Family/Assisted
Reproduction Technology (ART) attorney, it is my
hope that this will extend to an expansion in the laws
of ART as it relates to the LGBT community.
ART is the technology used to achieve pregnancy in the
treatment of infertility such as in vitro fertilization and
artificial insemination. As Family Law/ART attorneys, we
embrace this proposition because although Pennsylvania
has permitted same-sex marriage, ART law has still not
caught up. One of the challenges we face is how to establish legal parentage for couples
who conceive by using ART. For example, if a same-sex couple uses a sperm donor or
egg donor though a surrogate, how can the Intended Parents establish parental rights?
Currently, this is being addressed through extensive contracts by the parties because
the law is silent and such issues have not yet been addressed by Pennsylvania Courts.
Due to same-sex marriage being recognized in Pennsylvania, gay/lesbian parents now
may be able to attempt to establish parentage of their children through marriage by the
presumption of paternity (parentage) of a child born or conceived during the course of
a marriage. However, this may not allot full protection for the non-biological spouse.
Further, as marriage may provide legal parentage for same-sex couples, the
presumption may not, however, be available to couples of civil unions or domestic
partnerships entered into in other jurisdictions.
Historically, prior to same-sex marriage being recognized in Pennsylvania, secondparent adoptions (the adoption of a child by the unmarried partner of a biological
parent with the other parent not losing parental rights) were available for same-sex
parents in Pennsylvania. The adoption created a legal parent and child relationship with
the second-parent subject to full, faith and credit from other jurisdictions, bringing with
it rights and benefits such as inheritance, physical and legal custody and child support.
Presently, for same-sex
couples who are married
in Pennsylvania, stepparent adoptions may
now be filed instead of
second-parent adoptions.
Pennsylvania will allow
a parent to adopt their
spouses’ child born
through assisted means and this adoption will be recognized in every State regardless
of whether the State would have allowed the adoption to be completed within its
borders. As an added protection for the Intended Parent, the step-parent adoption
creates a legal parent/child relationship with the second parent. While many States may
not recognize a parent/child relationship that is based on a birth certificate or same-sex
marriage alone, every State must recognize an adoption decree and provide it with full,
faith and credit.
Since same-sex marriages are recognized in the State of Pennsylvania, and a
presumption of paternity (parentage) may apply, why the extra protection of second or
step-parent adoption?
The answer is simple, even though the presumption of paternity (parentage) may
apply and Pennsylvania recognizes same-sex marriage, this does not mean that every
State will do the same. Therefore, if one of the parents relocate to a State that does not
recognize their marriage or the rights associated with children of such marriages, they
may encounter custody issues in these States if they do not have the required Decrees/
Order of Court to assert these rights.
Therefore, for added protection, a Step-parent or Second-Parent Adoption will
still be necessary even if same-sex couples are married. The Department of Health
may issue birth certificates with the married couple’s names on it, but since this is
an administrative document and not a Court Order, an adoption is still required for
absolute protection. This way if a marriage is not recognized by a particular State,
parental rights based on that marriage will also not be recognized but a Court Order
should always be recognized.
In any case, it is recommended that as these issues are evolving in the courts, gay/
lesbian parents should seek the advice of a knowledgeable family/ART attorney to help
them determine the best cause of action under the law for their family.
Dorota Gasienica-Kozak is a partner with the KingSpry Law Firm, a member of the firm’s Executive Committee and chair of its Adoption/Assisted Reproductive Technology (ART) practice
section. She concentrates her practice in family, adoption and estate planning law.
Mrs. Kozak is a member of the Greater Lehigh Valley Chamber’s Board of Governors and
Secretary of the board’s Executive Committee. Mrs. Kozak is a regular contributor of articles on
various family and adoption law topics for publications such as Lehigh Valley Woman Magazine, and often speaks in support of her professional and board service activities.
In 2013, she was named to the 40 Under 40 list by Lehigh Valley Business. She was a Celebrity
Chef participant with Dining With Diakon for 2012, winning second place for funds raised in
support of the cause. A graduate of the Leadership Lehigh Valley program, Mrs. Kozak is a
former member of the board and was named the 2012 Leadership Lehigh Valley Alumni of the
Year. She has been named a Rising Star honoree by Super Lawyer Magazine and Philadelphia
Magazine, and in 2014, she was named a “YWCA Woman of the Year.” Most recently, she joined
the Board of the United Way of the Lehigh Valley and is a member of the Cedar Crest College
President’s Council.
Mrs. Kozak earned degrees from DeSales University in Politics and Criminal Justice and graduated from Temple University’s James E. Beasley School of Law.
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April/May 2015
LehighWomen.com