Can Same-Sex Couples Adopt Children in Pennsylvania?


Even the most passive observer of American life will have noticed that the United States is moving towards granting equal rights to same-sex individuals and couples.  For example, the US Supreme Court recently ruled that same-sex marriages are to be legal in all 50 states.  On the other hand, not every corner of America is moving at the same rate.  The Texas Supreme Court just ruled that while same-sex couples can get married in Texas, that doesn’t necessarily mean that those couples are entitled to the same rights and benefits as married mixed-sex couples.  With so much changing so quickly, family planning for same-sex couples can be very difficult.  Speaking with a Pennsylvania adoption lawyer can help.

How Does Pennsylvania Treat Same-Sex Adoption?

Pennsylvania doesn’t have any laws written that explicitly say same-sex couples can or can’t adopt.  Instead, Pennsylvania’s laws regarding who can be involved in adoptions are very simple and very broad.  Title 23, Section 2311 of the Pennsylvania Consolidated Statues reads in its entirety “Any individual may be adopted, regardless of his age or residence.”  Similarly, Section 2312 reads, “Any individual may become an adopting parent.”  

So Why Has Adoption Been A Problem For Same-Sex Pennsylvanians?

Although on their face Pennsylvania’s adoption laws appear to treat everyone equally, the way they were being applied meant same-sex couples were often unable to adopt children.  The reason why has to do with the original purpose of adoption, which was not intended as a tool for constructing families but instead as a way to replace an orphan’s parents.  Because the courts did not want to create situations where multiple people could all have valid legal claims as a child’s parent, before the court will grant an adoption it must first terminate the existing parents’ rights.  By doing so, the court erases the legal relationship that exists between the parent and child, creating a ‘legal orphan.’  Once the child legally has no parents, then the court is able to replace the biological parents with adoptive parents.

Historically, this method had worked very well most of the time.  Actual orphans were able to get ‘replacement’ parents, and children who had been the victims of abuse or neglect could be legally orphaned from their abusive parents and adopted into a healthy family.  But as same-sex individuals and couples began to gain civil rights, adoption started being used in ways that were never intended.  For example, before it was legal for same-sex couples to marry or otherwise have a legal relationship, many couples would have one partner adopt the other.  Although the legal parent-child relationship didn’t match their actual relationship as co-equal partners, it did at least permit them some rights, such as the right to be present at the partner’s hospital bedside in case of injury or illness.  But with these unintended uses came legal complications.

How Has Pennsylvania Resolved This Problem?

The most important moment in adoptions for same-sex couples came in 2002.  That year, the Pennsylvania Supreme Court heard two cases from same-sex couples who were challenging the requirement that the court terminate the existing parents’ rights before granting an adoption.  The couples pointed out that Pennsylvania has an exception for parents who re-marry; one partner’s new spouse is allowed to adopt his or her partner’s child even if the ex-spouse’s rights haven’t been terminated because the court has an interest in preserving the existing family structure.  But when the same-sex couples had tried to use this “step-parent exception,” the court had denied their requests because at the time Pennsylvania did not allow same-sex marriages, so the partners could not qualify as spouses.  That meant that if one of the partners already had a child (biological or from a previous adoption), his or her partner couldn’t adopt the child to become a co-parent without terminating his or her partner’s rights as a parent!  

In 2002, Pennsylvania’s Supreme Court decided that situation was “absurd.”  Chief Justice Stephen Zappala issued a decision in favor of the couples, allowing all Pennsylvanian couples to adopt regardless of the sex or marital status of the members of the couple.  As you can surely tell, adopting a child can be a complicated and sometimes daunting challenge, especially for same-sex couples.  If you would like some help with planning your own family, give us a call today to set up a free legal consultation with a Pennsylvania custody attorney today.