Huge victory for rights of same-sex couples

The Superior Court of Pennsylvania ruled on January 21 that a lower court abused its discretion in denying a petition seeking to clarify the parental status of a Biological Father with respect to his two minor children. In 2006, a male same-sex couple (the “Intended Fathers”) filed a Petition for Assisted Conception Birth Registration seeking to have both of them recognized as the legal fathers of twins to be born to them through the use of a gestational carrier who resided in Allegheny County, Pennsylvania.

The Biological Father is a dual citizen of the United States and Taiwan and he wanted the children to have health coverage through the Taiwanese national health insurance program. To do so, Taiwanese authorities would have to recognize the Biological Father as the sole legal parent of the children; however, because the twins are the product of a Taiwanese citizen and a woman married to someone else, Taiwanese authorities would not grant citizenship unless it had proof that the Gestational Carrier and her husband voluntarily terminated their rights to the children.

The order granted by the court recognized the Biological Father’s parental rights, but was silent on the rights of the Gestational Carrier and her husband. The Intended Fathers filed a second petition with the court seeking to amend the order to include language stating that the order terminated the parental rights of the Gestational Carrier and her husband. The lower court declined to amend the order, stating that the Gestational Carrier and her husband had no rights in the first instance that required termination and, furthermore, the court was not certain it had jurisdiction to consider this second petition.

The Superior Court’s decision notes that this is an ‘”unusual case” that is “without precedent” in Pennsylvania. The Superior Court’s decision recognizes the lower courts’ jurisdiction to entertain petitions for assisted conception birth registrations and petitions to amend signed pre-birth orders. The Superior Court remanded the case with a strong recommendation to the lower court that it reconsider its ruling.

Melissa B. Brisman states, “This case is a victory for all Intended Parents who are considering having a child through a gestational surrogate in Pennsylvania. It is very significant that the Pennsylvania Superior Court expressly acknowledged the jurisdiction of the Orphans’ Court Divisions in the state to adjudicate petitions for assisted conception birth registration making it likely that all birth orders will be granted in the future.”

This is an exciting week for the firm of Melissa B. Brisman. She will also appear in an interview on the CBS morning show this Sunday, January 25th, at 9am, discussing the growing use of gestational carriers.