Massachusetts First State to Extend Paternity to Gay Couples

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Every state has a paternity law – one that allows unmarried parents to establish parentage, custody and support rights for a child born outside of marriage. As the name paternity suggests, such actions have typically focused on fatherhood and rely on a biological relationship between the parent and child. But today we live in a society where committed couples have children outside of marriage and where at least one of those parents has no biological connection to the child. In the event the relationship ends, should the non-biologically related parent have a right to custody?

Today, the Massachusetts high court became the first state high court or legislature to provide a clear answer: yes.

In some ways, this decision seems long overdue, particularly in light of recent U.S. Supreme Court decisions that have put same sex marriage on equal footing with opposite sex marriage. But interestingly, the Massachusetts court did not rely on those decisions in its reasoning.

The facts in Partanen v. Gallagher are uncomplicated. Karen and Julie lived together in a committed relationship for twelve years. During that time, Julie gave birth to two children through in vitro fertilization; the children had no biological attachment to Karen. However, the pregnancies took place with Karen’s full participation and consent, and with the understanding of both Karen and Julie that they would raise the children together as their own. Karen never formally adopted the children, but the children considered her a parent and called her “mommy.” When the relationship ended, Julie did not want Karen to have any further relationship with the children – children she helped raise as her own for years. Karen filed a parentage suit, beginning the litigation that culminated in today’s ruling.

The Massachusetts court has a paternity law very similar to that of Missouri – very gendered and premised on biological ties. The court chose to look beyond both the gender and biology requirements to consider the purpose of the law as a whole – to make sure that a child has the right to the care and support of both parents. A presumption of parentage may flow from biology or from agreement or pattern of behavior, and the child should not suffer simply because of the absence of a biological connection. In this sense, the court seemed to look at the equal protection argument, finding it irrational to treat out-of-wedlock births to heterosexual couples differently from those to gay couples.

The ruling in Partanen could have far-reaching implications as other states wrestle with statutes that have not caught up to societal changes. Hopefully, legislatures will act before the courts. But the decision could also affect women who have children through surrogacy but without the protection of a written legal agreement. While it seems sensible to place the emphasis on the welfare of the child and looking on a case by case basis, we can certainly see complications that could arise with poorly worded statutes and advances in technology.

If you have questions about parentage and gay couples, contact us – we can help.

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