Partanen v. Gallagher
Jo- and Ja- are siblings, now 7 and 4 years old, the children of Karen Partanen and Julie Gallagher.
Karen and Julie were a couple for nearly 13 years. They met in Massachusetts, moved to Florida where they purchased a home together, and after a time decided to have children together using assisted reproduction. Together they consented to the procedures, chose a donor, and underwent psychological evaluations. Karen first tried to become pregnant, but when she was unsuccessful, Julie became pregnant. Karen even injected Julie with the semen for the conception of their second child.
Their families were thrilled with the news of the pregnancies, and held a baby shower for the couple. From the moment “Jo” was born in 2008, and “Ja” in 2012, Karen (who was present with Julie in the delivery room) was Mommy to them and Julie was Mama.
When the children were born, Karen and Julie sent out birth announcements to friends and family. They raised the children together, sharing all of the normal parenting duties, from night feedings to medical decisions to financial support. They spent holidays and vacations together, and their families and community of friends saw them as a family unit. Jo and Ja saw both Julie’s and Karen’s parents as their grandparents – and were in turn regarded as grandchildren. The children’s schools and medical providers knew both Karen and Julie as the parents.
For the time that Karen and Julie lived in Florida, adoption was not an option that was available to Karen to establish herself as a legal parent. Florida’s ban on “homosexual” adoption (the last in the nation) was struck down by an intermediate appellate court in late 2010 and not appealed by the State. Following this, there was a years-long period of legal uncertainty about whether other mid-level courts of appeal would agree with the ruling and where the Florida Supreme Court stood on the constitutionality of the ban. The adoption ban was repealed only in 2015.
In 2012, Karen and Julie moved from Florida to Massachusetts, where their relationship deteriorated, and they separated in 2014. At that point, Julie had refused Karen’s request to do an adoption. In 2014, Karen filed a legal complaint seeking to be declared a “de facto” parent, so that she could see the children.
Karen filed a second complaint to be declared a full, legal parent under existing Massachusetts laws to secure a clear ruling acknowledging her role and her responsibilities to the children. No appellate case has decided whether that is permissible, although the “paternity” (and “maternity”) law in place since 1986 serves as a backstop to declare the parentage of children whose parents have not married or adopted them.
That groundbreaking law was part of systemic efforts in Massachusetts to ensure that all children receive equal consideration regardless of the circumstances of their birth. Since that law, Chapter 209C, imposes responsibility on people who have children through sexual reproduction, and its terms are general, Karen argues it is broad enough to include children born through assisted reproduction, as here. Such a ruling would provide protections for both same-sex and different-sex couples who use assisted reproduction to create their families, which in Massachusetts is about 5% of all births.
While the judge in the parentage case dismissed Karen’s claim, prompting this appeal, the judge in the de facto case granted Karen shared legal and physical custody and issued a child support obligation. Gallagher is appealing that ruling because she wants to be the only decision maker. A notice of appeal was filed at the Appeals Court in that case.
Julie has opposed Karen’s effort to become a legal parent to Jo and Ja. Karen seeks stability and permanency for her children. “I grew up in a large family, and that sense of family is what I want for my children,” said Karen.
When relationships change, families that have formed by love and intention, but without court involvement, can be vulnerable to legal attack, leading to this kind of high-stakes litigation. Karen hopes that her children will be able to enjoy the same legal protections as other children so that they can continue to have the security of their two parents.
Karen is represented by Mary L. Bonauto of GLBTQ Legal Advocates & Defenders, Patience Crozier of Kauffman Crozier LLP, Elizabeth Roberts of Todd & Weld LLP, Teresa Harkins La Vita of La Vita Law Center.
The Legal Issues and Arguments
The focus of this case is to ensure that the two parents who brought Jo and Ja into the world remain their parents even though the adults have now separated. Our nation decided long ago that children should not pay the price if their parents do not marry or take other steps to secure their legal relationships. That same principle applies to the children in this case.
Like every state, Massachusetts has a comprehensive law in place to assure that children who are born to an unmarried couple may have a determination of who are their legal parents, to ensure that both parents support them (when able), and that their custody and visitation be allocated based on the children’s best interests.
That law says that when unmarried parents have and raise a child together in their home and hold out the child as their child to the community, that the non-birth parent is presumed to be a legal parent regardless of biological connection. That law should apply here.
This law was drafted before assisted reproduction became widely available, as now, for individuals and married and unmarried couples. Since the law requires that a child be “born to” a couple for its protections to apply, this case asks that children born to an unmarried couple through assisted reproduction have the same protections as children born to an unmarried couple through sexual intercourse. That would mean the court would determine their legal parentage, impose support obligations, and make an assessment of what custody and visitation arrangement is in their best interests for that couple.
Massachusetts also has a law that provides for immediate legal parentage upon both parents at the time of birth when a married couple has consented to have a child through assisted reproduction. Karen argues that law should apply here, even though the parents are unmarried, because Massachusetts extends every protection available to children of married couples to children of unmarried couples to the extent possible. The constitutional rights of non-marital children to equal treatment demand that same result.
The Complaint to Establish legal parentage was dismissed by the trial court in March 2015 and is the focus of this appeal. The appeal was taken on direct review by the Massachusetts Supreme Judicial Court (SJC).
Karen’s attorneys argue that Jo and Ja were born to both Karen and Julie through assisted reproduction, and that they must have the same rights as other non-marital children. This is particularly true when parents have cared for the children and created a substantial parent-child relationship.
Karen’s attorneys make this argument under:
- Chapter 209C of Massachusetts General Law (MGLA) which is the law protecting all children born to unmarried parents, under which Karen has legal standing as a presumed “holding out” parent to make a claim for legal parentage. Based on the circumstances of the children’s birth – mutually agreed-to assisted reproduction rather than sexual activity – there is no question that the child was their child and not the child of another possible person who could assert a claim for parentage. The courts must construe the law in a gender-neutral fashion, which provides that a person is a presumed father if “while the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child.”
- MGLA G.L. c. 46, 4B, which establishes that a child born into a marriage through assisted reproduction with the consent of the spouse is the legal child of both spouses. The statute creates parentage upon birth based on mutual consent and requires no biological connection.
- Equity: If for any technical reason the statutes do not apply, the command that non-marital children not be disadvantaged relative to marital children requires the court to provide the parentage remedy through equity. In addition, the brief notes that there is no reason that “de facto” parenthood should not include rights of custody, visitation and the obligation of child support when a child is brought into the world and raised by two loving adults.
Friend-of-the-court briefs have been submitted by:
- Massachusetts legal organizations including Greater Boston Legal Services, Children’s Law Center, Women’s Bar Association, the Massachusetts LGBTQ Bar Association and Community Legal Aid
- Assisted Reproductive Technology attorneys and organizations including Boston IVF, Fenway Health, IVF New England, New England Fertility Society, Path2parenthood, Resolve: The National Infertility Association, and Resolve New England
- A group of forty-two law professors with expertise in parentage and children’s rights law, authored by the National Center for Lesbian Rights
- The Massachusetts Attorney General