An unmarried lesbian whose former partner gave birth to two children via artificial insemination can seek the same rights as the children’s biological mother, the Massachusetts Supreme Judicial Court has ruled.
The court found that a gay person can establish themselves as a child’s presumptive parent under state law, even in the absence of biological ties, reports The Boston Globe.
As a result of the ruling, Karen Partanen will now be able to argue in family court that she should be recognized as the parent of a 4-year-old and an 8-year-old that she helped raise along with her former partner, Julie Gallagher.
A family court judge had previously dismissed Partanen’s request for parental rights, saying that she had no standing because she was neither a biological parent nor married to Gallagher at the time. The Supreme Judicial Court’s decision reverses that earlier ruling.
Gallagher’s lawyer, Jennifer Lamanna, had argued that Partanen could have obtained legal rights to the children by other means, such as by marrying Gallagher, adopting the children, or filing a voluntary acknowledgement of paternity.
At least 35 states confer parental rights on spouses who consent to assisted reproductive technology, such as artificial insemination.
But with the high court’s ruling that unmarried partners can now seek parental rights, Massachusetts joins seven other states and the District of Columbia is recognizing the non-biological parent — regardless of marital status — who consents to assisted reproductive technology with the intent of raising the child or children in question.
Lammana told the Globe that her client has not made a decision on whether to contest Partanen’s claims to parentage in family court, as Partanen must still provide evidence showing that she and Gallagher, when they were coupled, intended to raise the children together.
Susan Sommer, national director of constitutional litigation at Lambda Legal, says the decision will grant children born to same-sex unmarried parents more security, as it allows the non-genetic parent to establish a legal claim to the child or children in question.
Sommer says those non-genetic parents can establish their parentage in a number of ways, including through birth announcements, being listed as a parent on the birth certificate, being present at the delivery, or even having the child refer to them as a parent.
“This decision puts Massachusetts in the mainstream trend among states around the country,” Sommer says. “The Massachusetts court applied a particular statute that is common to many other jurisdictions. The decision itself cites a number of other state court opinions that have ruled similarly, ranging from New Mexico to New Hampshire.”
In a similar case out of New York, the Empire State’s Court of Appeals ruled, based on a different statute, that an unmarried, non-biological, non-adoptive adult in a same-sex relationship can be considered a parent to the children that a couple raised or intended to raise together.
“There’s no doubt that marriage brings with it a tremendous bundle of rights and protections that apply to children. That was a centerpiece of the U.S. Supreme Court’s ruling in holding that there’s a constitutional right to marry for same-sex couples,” adds Sommer. “But there are many families who, for many reasons, choose not to marry or have obstacles to marriage, and their children deserve protections as well.”
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