When the Pennsylvania Supreme Court ruled unanimously in August that the Pennsylvania Adoption Act does not prevent a gay or lesbian person from adopting their partner’s child, its 13-page opinion used the word “absurd” three times to describe the current interpretation of the law.
“There is no language in the Adoption Act precluding two unmarried same-sex partners… from adopting a child who had no legal parents. It is therefore absurd to prohibit their adoption merely because their children were the biological or adopted children of one of the partners,” wrote Chief Justice Stephen A. Zappala in the court’s opinion.
At issue were second-parent adoptions—those cases where one partner already was recognized as a guardian. Same-sex couples could legally adopt children together, but adoption was sometimes denied if one member of the couple tried to adopt their partner’s legal or biological child.
“There were courts that were giving second-parent adoptions a number of years ago—there were people who were correctly interpreting the statutes,” said attorney Stacey L. Sobel, executive director of the Philadelphia-based Center for Lesbian and Gay Civil Rights, which filed a “friend of the court” brief as co-counsel with the Women’s Law Project in support of second-parent adoption.
The state Supreme Court ruling followed four years of litigation involving two families each with two children, one from Erie and the other from Lancaster. In both cases, lower courts denied second-parent adoptions. The cases were brought jointly to the Superior Court in 2000, and the lower courts’ rulings were upheld.
The Supreme Court’s decision reversed the Superior Court decision, remanding both cases to the lower courts. But the Aug. 20 ruling does not guarantee second-parent adoptions: Individuals seeking to adopt still must apply to their county courts and undergo a full evidentiary hearing in order for a judge to determine if adoption is in the best interest of the child.
A growing trend
A poll conducted in March by Time/CNN indicated that supporters of same-sex adoption now outnumber opponents, if only slightly. Forty-seven percent of respondents agreed that same-sex couples should be legally permitted to adopt while slightly fewer—42 percent—disagreed. Opponents were down 23 percentage points since a 1994 poll and 15 points since 1998.
Court decisions as well have given more and more rights to non-adoptive gay and lesbian parents. Last December, for example, the state Supreme Court ruled that non-adoptive parents could sue for custody, and more recently, a lower court ordered a non-adoptive parent to pay child support.
The benefits of the Supreme Court ruling will have a favorable impact on children in a wide range of legal areas, Sobel said. Children will now have the rights associated with a legal parent-child relationship, including health insurance, medical decision-making authority, child support payments and custody. Adoption laws, according to Sobel, must “always focus on what is in the best interest of the child. In these cases, to have two legal parents is always better than having one.”
Maxine Chalker, executive director and founder of Adoptions From the Heart, said her organization was involved with the case because the Erie couple had adopted through her agency.
“We let the birth parents select the adoptive parents, so they’re well aware if the family is a gay or lesbian family,” Chalker said. “If the birth parents and adoptive parents have made this decision, why shouldn’t it be allowed?”
But the Pennsylvania Catholic Conference registered its opposition to the ruling in a statement: “The PCC is deeply disappointed in this decision in which the court has taken policy-making into its own hands, bypassing the Legislature completely. In fact, the Legislature has had before it a bill that would open adoptions to non-married couples or groups of individuals; the measure has never even been addressed.”
PCC communications director Carolyn Astfalk added: “[This decision is] really toying with the adoption law. Rather than having it work on the whim of judges, we prefer that any changes to the law be made through the Legislature.”
Sobel countered: “There is a law, and it is the court’s job to interpret the law involved. The state Supreme Court said the adoption act clearly permits same-sex second-parent adoption, and to prevent it is absurd.”
“Our reading of the law says that it doesn’t permit it,” Astfalk said. “We’re also concerned [that] not only does this allow for same-sex adoptions, but it’s setting up all kinds of possibilities for multiple parents.” Astfalk also noted that only 14 of Pennsylvania’s 68 counties have permitted so-called second-parent adoptions.
“At a time when many opponents are also decrying the increase in single family homes,” Sobel said, “it is hypocritical for them not to support a person who is trying to take legal responsibility for a child.” Sobel said her office has heard from growing numbers of families interested in second-parent adoption. “It’s clear that this issue is important to families in Pennsylvania and they’re going to try to secure their rights. As more people in our society get to know gay and lesbian and transgender people and their families, this issue is not as scary.”
The court’s ruling puts Pennsylvania among a group of eight states and the District of Columbia that allow same-sex second-parent adoptions. Legislation is currently pending in 18 other states.