A recent decision by the Pennsylvania Superior Court in a 2023 Pennsylvania Appellate Case has demonstrated the importance of new legislation for same-sex partners. In this case, a same-sex couple in Pennsylvania contracted a sperm donation and used in vitro fertilization (IVF) to become pregnant. Before the baby was born, the couple separated, and the non-biologically related parent filed a petition to confirm parentage to the unborn child.
The Court of Common Pleas of Philadelphia ruled that this woman was a legal parent. However, the Pennsylvania Superior Court reversed that decision, holding that the contract was not specific enough to be legally enforceable under contract principles and prior cases.
Attorney’s with Petrelli Previtera, LLC argued that the contract only anticipated that the non-biologically related parent would have legal parenting rights after a formal adoption, which did not take in this situation. saying, “The Superior Court’s limited in their scope of review. And until the legislature decides on this specific issue in Pennsylvania, there’s a gap. In California, this has been covered by the legislature. If you have a same-sex marriage and you conceive a child during the marriage, it’s assumed to be a child of the marriage. That’s not recognized in Pennsylvania.”
The outcome of this case highlights key facts same-sex parents in Pennsylvania need to be aware of when they plan to become parents, including the contracts they sign. Petrelli Previtera, LLC recommends that clients have the contracts reviewed by legal counsel to ensure they have the necessary provisions and look into prenuptial agreements. “The pressure should be on the legislature rather than the courts because the superior court’s bound by precedent,” said an attorney with the firm. “Superior court can’t make new law. The Supreme Court can in certain situations, and the legislature can, superior court cannot.” With this recent case, Pennsylvania Superior Court demonstrated the importance of new legislation for same-sex parents in the state. Until then, same-sex parents in Pennsylvania need to take precautions and look into the contracts they sign when they have a child.
