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Court reverses ban on gay partners becoming legal parents

Wednesday, August 21, 2002

By Barbara White Stack, Post-Gazette Staff Writer

The state Supreme Court yesterday reversed a lower court and ruled that gay men and lesbian women in Pennsylvania may adopt the children of their partners.

The ruling places Pennsylvania among the 20 or so other states that permit adoption by gay and lesbian couples.

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The Supreme Court voted 6-0, with Justice Michael Eakin abstaining.

The decision was greeted with joy from gay and lesbian couples across Pennsylvania who have waited to adopt while the case was working its way through the appeals courts. The Superior Court decision reversed yesterday was handed down Nov. 8, 2000.

Allegheny and some 13 other Pennsylvania counties that had previously permitted adoption by gay and lesbian couples suspended the practice while awaiting the appeals decision. During those four years, individual gay men and lesbian women could still adopt children, but their partners could not.

Etty Reut of Squirrel Hill said she blinked back tears immediately after hearing of the decision, and when she called friends, they cried together on the phone.

"As soon as I heard the message, all of my emotions came up," she said. "There is justice after all. This is absolutely justice."

She and her partner, Barbara Milch, went to China to get a child six years ago. Milch adopted there, and Reut adopted here when they returned. But three years ago, when they returned from China with a second daughter, the pending appeal prevented Reut from adopting.

The Supreme Court decided that the state adoption law gives county Common Pleas Court judges, who preside over adoption cases, discretion to permit adoptions by gay and lesbian couples or by unrelated heterosexual couples.

Christine Biancheria, the Pittsburgh attorney who led the legal effort to permit gay and lesbian adoptions, said she was glad that Pennsylvania has associated itself with New York, which permits such adoptions, rather than Florida, which does not.

Eighty organizations signed three briefs supporting Biancheria's appeal for two couples, one from Lancaster and one from Erie.

Filing opposing "friend of the court" briefs were the Pennsylvania Catholic Conference and the Pennsylvania Family Institute.

Carolyn Astfalk, communication director for the Catholic conference, said it opposed adoptions by gay and lesbian couples because "we think that a two-parent family with a mother and a father is the best environment for a child."

In addition, she said, the Legislature should decide this important public policy issue.

"To put the decision in the hands of a judge is not as appropriate as letting the Legislature pass a law, in which the public would have a hand," she said.

She pointed out that the Legislature has a bill before it specifically permitting gay and lesbian adoptions but has not enacted it.

The Supreme Court opinion relies on language in a 1982 amendment to the existing adoption law added after the court prohibited an adoption by a woman who was not the spouse of the children's biological father. The amendment says a judge may waive a requirement of the adoption law "for cause shown."

Biancheria had argued that showing it would be in the best interest of a child to have two parents, whether they were spouses or not, would constitute good cause.

She said yesterday she believes Allegheny County judges are likely to accept this argument, now that the Supreme Court has officially permitted it.

The dispute began in 1997 in Lancaster County, home to Carole Fryberger, who delivered twin sons that year. Her partner, Barb Fryberger, petitioned the court in April 1998 to permit her to adopt the boys. The Lancaster County judge refused.

Biancheria, who had filed successful adoption petitions for gay and lesbian couples in Allegheny County and had been researching the issue for a law review article, offered to take the Fryberger appeal without charge.

Carole Fryberger said that without Biancheria's help, she and her partner would not have been able to afford an appeal because of the expense of 10 years of in vitro fertilization attempts.

In 1999, an Erie County judge refused to permit an adoption by a gay man's partner. The man had adopted his first child in 1991 and the second in 1999. His partner, with whom he'd lived since 1982, wanted to adopt both children as well. Their case was joined with the Fryberger appeal.

Carole Fryberger said yesterday the decision will give her children security.

"Once the adoption is granted, we will not have to worry if I die that she would have to fight for custody of her own kids," she said. "Without this, she is a legal stranger to them."

Barbara White Stack can be reached at bwhitestack@post-gazette.com or 412-263-1878.

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