Divorce Law Monitor

SJC Rules That a Biological Connection Is Not Required for Parentage

October 6, 2016


The Massachusetts Supreme Judicial Court (SJC) has ruled that a person may establish herself as a child’s presumptive parent without the need for a biological relationship to the child. The same-sex partner of a woman who gave birth to two children conceived via artificial insemination during their committed, but non-marital, relationship is entitled to the presumption that she is a legal parent of the children.

The Story Behind Partanen v. Gallagher

Karen Partanen and Julie Gallagher were in a committed relationship for 12 years, but never married. In 2005, they decided to start a family with a “shared intention of both being parents of the resulting children.” Partanen tried artificial insemination, but was unable to become pregnant. In 2007, Gallagher conceived a child using assistive reproductive technology and gave birth to a baby girl. In 2012, Gallagher gave birth to a son. Partanen did not adopt the children and never signed an “acknowledgment of parentage” form. This form would have given her legal status as the children’s parent.

Gallagher and Partanen lived together with the children as a family until 2013. During that time, Partanen says they jointly raised and nurtured the children. They shared expenses, vacationed as a family, made joint decisions for the children and held themselves out to the community as the parents of the children. Both children call Partanen “Mommy” and call Gallagher “Momma.”

In 2013, the parties’ relationship ended, and Partanen moved out. She obtained a court order establishing herself as a “de facto parent.” This gave her rights to spend time with the children, as well as obligated her to pay child support. The Order did not give her legal status as a parent, without which she didn’t have decision-making authority. So, she filed an action in the Probate and Family Court seeking to establish that she is a legal parent to the children. The Probate and Family Court dismissed her case – in part because she has no biological link to the children. The Supreme Judicial Court has now overturned the Probate and Family Court’s decision.

Gender Neutral Laws Apply

The law for establishing parentage for a child born out of wedlock is found at Massachusetts General Law Chapter 209C. Massachusetts has held that all statutes must be read as gender neutral. In the past, many have known G.L. c. 209C as the “paternity” statute because it specifically defines when a “man” is presumed to be the “father.” Despite the use of the terms “man” and “father” in the statute, because of gender neutrality, G.L. c.209C applies to determining who is a legal parent of a child born out of wedlock, regardless of gender. One way a person is presumed to be a child’s parent is if the child is born to the parties, received into their home and held out to the community as their child. Partanen argued that all these provisions applied to her. This would give her a presumption of parentage and entitle her to seek a judgment declaring her as a parent of the children born during her relationship with Gallagher.

Gallagher argued that she chose as a single woman to have children via artificial insemination, to remain unmarried and not to allow anyone adopt the children. She maintained that this makes her, purposefully, the only legal parent. Previous case law held that the presumption of parentage can be refuted if a man can show he is not genetically related to the child. Since everyone agrees that Partanen shares no biological connection to the children, Gallagher argued Partanen’s case was properly dismissed.

What’s Best for the Kids?

When handing down the ruling, the SJC was most concerned with the welfare of the children. The SJC ruled that nothing in the law limits its applicability to claims based upon biological ties. Despite prior decisions linking parentage to biology, the SJC did not intend to suggest that the law is limited only to parentage based on biology. The Court held, “we decline to read into the statute a provision that leaves children born to unmarried couples with only one parent.”

This decision sends the case back to the Probate and Family Court for a determination of parentage. The SJC decision established only that Partanen met the presumption, but that presumption of parentage can still be rebutted. The presumption in this case cannot be rebutted by the lack of biological connection given that Partanen’s claim of parentage was not based upon biology. However, if the evidence shows that the parties didn’t make a joint decision to create these children and the children were not held out by them in the community as their joint children, the lower Court could determine that Partanen is not entitled to the rights of a legal parent.

While this decision is being hailed as a victory for unmarried same-sex parents, the case has ramifications for unmarried heterosexual couples, as well. If a committed couple conceives a child and both parties act in a parental role to that child, this can result in legal parental rights and obligations where there is no third party claiming a biological connection. The assumption that marriage, adoption or biology is necessary to create parental rights and obligations is a thing of the past. It’s conduct that counts.

Until next time,

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