Parentage | Massachusetts

The Massachusetts Parentage Act (MPA) is new legislation, signed by Governor Healey on August 9, 2024, that updates our state law on establishing and recognizing legal parent-child relationships to include and protect more families, including LGBTQ families, families formed through assisted reproduction, and families which include a de facto parent.

The new law updates the “paternity” statute, Chapter 209C, so that its existing provisions are gender inclusive and to add new, comprehensive parentage provisions, including protections for children born through assisted reproduction and through surrogacy, and children of de facto parents. Chapter 209C is now titled “Non-marital children and parentage of children.” The law aims to ensure each child has a clear path to secure their legal parentage.

The MPA was fully bipartisan. The lead sponsors in the House were Rep. Sarah Peake (D) and Rep. Hannah Kane (R). The lead sponsors in the Senate were Senator Julian Cyr (D) and Senator Bruce Tarr (R). Both the House (June 12) and the Senate (July 30) unanimously passed the MPA, with final enactment on July 31, 2024.

The Massachusetts Parentage Act becomes effective on January 1, 2025.

Read the law here.

If you have questions or need a lawyer referral before the MPA takes effect in January, please contact GLAD Answers at www.gladanswers.org

“Parentage” is the legal relationship between a child and a parent. Parentage comes with a host of rights (e.g., decision-making for medical care or education, parenting time in the event of separation from your child’s other parent) as well as responsibilities (e.g., providing health insurance, providing for basic needs, payment of child support). Since parentage is the source of so many rights for a child, a secure legal parent-child relationship is core to a child’s long-term stability and well-being.

Establishing parentage soon after birth ensures that a child is secured to their parents for all purposes and increases clarity for all involved in a child’s life. For example, parentage will allow a parent to make any early medical decisions in a child’s life, ensure that a child will receive insurance benefits or inheritance rights, and protect parents’ rights if the parents separate.

The MPA provides that Massachusetts parents can establish their parentage in the following ways:

• Giving birth (except for people acting as surrogates)
• Adoption (pursuant to chapter 210)
• Acknowledgment (by signing a Voluntary Acknowledgment of Parentage)
• Adjudication (an order from a court)
• Presumption (including the marital and non-marital presumption)
• Genetic connection (except for sperm or egg donors)
• De facto parentage
• Intended parentage through assisted reproduction
• Intended parentage through a surrogacy agreement

The MPA has many provisions that protect non-biological parents. If you are your child’s presumed parent, or if you are the intended parent of a child born through assisted reproduction other than surrogacy, you can establish legal parentage by signing a Voluntary Acknowledgment of Parentage.

All parents can establish parentage through a court order. A presumed parent or an intended parent of a child conceived through assisted reproduction can seek a judgment declaring the person a parent of the child or do a co-parent or second-parent adoption. Some non-biological parents can establish parentage through the existing “holding out” provision of the Massachusetts code (G. L. c. 209C, § 6(a)(4) or through the new de facto parent provision, which has a standard for a court to assess whether to adjudicate the person to be the child’s de facto parent.

An intended parent is a person who consents to assisted reproduction with the intent to be a parent of the child. The MPA addresses intended parents in the context of surrogacy separately from intended parents in the context of other forms of assisted reproduction. Ideally, a person who consents to assisted reproduction with the intent to be a parent will memorialize that intent in writing, but the law allows other ways to prove intent to be a parent.

The MPA provides that a person who consents to assisted reproduction with the intent to be a parent of the child “shall be a parent of the child.” Consent to assisted reproduction may be established by a written record or evidence of an oral agreement as follows:

• In a record signed by the person giving birth to the child and the intended parent before, on, or after the birth of a child.
• A finding by the court, by a preponderance of evidence that:
  • Before conception or birth of the child, the parties agreed they would both be parents OR
  • The person who seeks to be a parent of the child, together with the person giving birth, voluntarily participated in and consented to the assisted reproduction that resulted in conception of the child.
• See G. L. c. 209C, § 27(d). 

A presumed parent is a non-birth parent that the law recognizes because of certain circumstances or relationships. A presumed parent is established as a legal parent through the execution of a valid Voluntary Acknowledgment of Parentage, by an adjudication, or as otherwise provided in the MPA. There is a marital and non-marital presumption of parentage in Massachusetts and has been since the mid-1980s.

You are a presumed parent if any of the below are true:

• You are married to the child’s birth parent when the child is born
• You were married to the child’s birth parent, and the child is born within 300 days of the marriage being terminated by death, annulment, or divorce
• You, jointly with another parent, resided in the same household with the child and held out the child as your child
• See G. L. c. 209C, § 6.

The MPA leaves intact the marital and non-marital presumptions of parentage that have existed in MA law since the 1980s. The MPA ensures that the language of these presumptions is explicitly inclusive of all genders, as the SJC required in Partanen v. Gallagher, 475 Mass. 632 (2016).

The MPA provides important clarity and protections for children born through assisted reproduction. The MPA confirms that a gamete donor (e.g., sperm or egg donor) is not a parent of a child conceived through assisted reproduction. Also, the MPA affirms that a person who consents to assisted reproduction with the intent to be a parent of the resulting child is a legal parent.

Yes. The MPA includes provisions so that parents can get a judgment of parentage from the Probate and Family Court. A donor is not entitled to notice in these proceedings. A person giving birth or an intended parent may start a proceeding before or after birth to get a parentage judgment. See G. L. c. 209C, § 27(j). A judgment of parentage is a court judgment that should be recognized in all states.

Federal law requires each state to provide a simple civil process for acknowledging parentage upon the birth of a child. That simple civil process is the Voluntary Acknowledgment of Parentage (VAP) program. VAP forms must be available at hospitals and through state birth record agencies.

VAP forms themselves are short affidavits in which the person signing affirms that they wish to be established as a legal parent with all of the rights and responsibilities of parentage. The birth parent must also sign the form, and both parents have to provide some demographic information about themselves.

By signing a VAP, a person is established as a legal parent, and the child’s birth certificate is issued or amended to reflect that legal parentage. Properly executed, a VAP has the binding force of a court order and should be treated as valid in all states.

You can voluntarily acknowledge the parentage of a child by signing a form from the Massachusetts Department of Public Health known as a Voluntary Acknowledgement of Parentage. A VAP must be signed by the birth parent and the other parent (i.e., the person establishing parentage through the VAP). The other parent can be the genetic parent, an intended parent of a child born through assisted reproduction other than surrogacy, or a presumed parent (i.e., the spouse of the birth parent at the time of the child’s birth, or a person who resided with the child and held out the child as the person’s child).

Signing a VAP form is voluntary, and it can be done at the hospital soon after birth or at a later time through the Registry of Vital Records and Statistics. A VAP form must be notarized.

If you have any questions about whether to sign a VAP form, you should consult with a lawyer before signing. A VAP is the equivalent of a court judgment of parentage, and parentage is a considerable, life-long responsibility.

• A presumed parent who seeks to establish parentage in situations in which the other parent is not the child’s birth parent, e.g., the child was adopted by the other parent, must establish parentage through an adjudication and cannot establish parentage through a VAP.
• Parentage cannot be established through a VAP if there is a third person who is a presumed parent, unless that person has filed a Denial of Parentage.
• An intended parent of a child born through surrogacy should use a court process and not a VAP.

VAPs can be signed after the birth of a child and even after a child is an adult. A VAP can also be completed before the child’s birth but will not take effect until the child is born.

A Voluntary Acknowledgement of Parentage can be rescinded by either party for any reason within 60 days after its signing or prior to an administrative or judicial proceeding relating to the child in which the signatory is a party, whichever is earlier. If the form is not rescinded within that 60-day time frame, a VAP can be challenged in court only within one year of execution and only on the basis of fraud, duress, or material mistake of fact. See G. L. c. 209C, § 11.

If your child’s parentage isn’t already established and you reside in Massachusetts, then you can sign a Voluntary Acknowledgment of Parentage in Massachusetts. If you experience barriers to executing a VAP, please contact GLAD Answers.

No. A parent who has signed a Voluntary Acknowledgement of Parentage should not need to complete a co-parent adoption to establish or confirm parentage. A VAP establishes legal parentage under state law, is the equivalent of a judgment of parentage under state law and gives you all the rights and duties of a parent. Under federal law, a VAP is the equivalent of a judicial decree of parentage and should be recognized in all states.

Since expanded access to acknowledgments of parentage is an emerging development, some parents might feel more comfortable also completing a co-parent adoption in addition to or instead of a Voluntary Acknowledgment of Parentage or securing a judgment of parentage. To understand what is best for your family, individualized legal advice is recommended. If you need a referral, contact GLAD Answers.

No. A parent who has a judgment of parentage does not need to do a co-parent adoption to establish or confirm parentage. A judgement of parentage is a judicial decree and should be recognized in all states.

Yes.  Although unnecessary, some parents might feel that they want the belt and suspenders of a co-parent adoption.  Massachusetts law is clear that a legal parent can also adopt their own child without terminating the legal parent’s rights.  See Petition of Curran, 314 Mass. 91 (1942); Adoption of Tammy, 416 Mass. 205 (1993).    

A de facto parent is a parent based on their relationship with the child. Establishing de facto parentage requires a judgment from a court. Before the child turns 18, you can petition a court to establish your de facto parentage by demonstrating, with clear and convincing evidence, all of the following:

• You lived with the child as a regular member of the household for not less than 3 years or 40% of the child’s life, unless there are extraordinary circumstances
• You consistently took care of the child
• You took full and permanent responsibility for the child without expectation of financial compensation
• You held the child out as your child
• You established a bonded and dependent relationship which is parental in nature
• Each legal parent consented to the bonded and dependent relationship
• Adjudicating you as a parent is in the child’s best interest.

Stay tuned for more in-depth information about de facto parentage.

Massachusetts case law already authorized courts to recognize intended parents who have children through a gestational surrogacy arrangement as the child’s legal parents. The MPA provides much more comprehensive regulation of surrogacy, including clear guidance about how to establish parentage through surrogacy agreements. The MPA addresses both gestational surrogacy, in which the person acting as the surrogate is not genetically connected to the child, and genetic surrogacy, in which the person acting as the surrogate is genetically connected to the child. Having a lawyer is required for a valid and enforceable surrogacy agreement in Massachusetts so it is advised to consult legal advice at the outset of this family-building process.

Before starting any medical procedures to conceive a child through a surrogacy process, you must have a written and signed agreement. This agreement is between you, any other intended parents, the person acting as the surrogate, and that person’s spouse (if applicable). This agreement will establish that you are the parent(s) of the child and that the surrogate and their spouse (if applicable) do not have parental rights or duties. If you are entering a genetic surrogacy agreement, you must also have the agreement validated by a probate court before any medical procedure takes place.

To enter into a surrogacy agreement, all of the following must be true:

• All intended parents and the person acting as the surrogate must be at least 21
• All intended parents and the person acting as the surrogate must have completed a mental health evaluation, and the person acting as the surrogate must also have completed a medical evaluation
• The person acting as the surrogate must have previously given birth to at least one child
• The person acting as the surrogate must have health insurance or some other form of medical coverage
• The intended parent(s) and the person acting as the surrogate must be represented by separate lawyers for the purposes of the agreement, and the attorney for the person acting as the surrogate must be paid for by the intended parent(s)

The law requires surrogacy agreements to incorporate several terms to be valid, such as allowing a person acting as a surrogate to make their own health and welfare decisions during pregnancy and requiring the intended parent(s) to pay all related healthcare costs.

The MPA explicitly provides that every child has the same rights to parentage as any other child without regard to the marital status of the parents, or the circumstances of the child’s birth. By not differentiating between parents based on their marital status, the MPA aims to treat all Massachusetts families equally.

The MPA explicitly provides that every child has the same rights to parentage as any other child without regard to the gender of the parents or the circumstances of the child’s birth. The MPA, by using more inclusive language, is inclusive of parents of all genders. By doing so, the MPA aims to treat all Massachusetts families equally.

Yes. Massachusetts courts already allow for more than two legal parents through the adoption process. Under the MPA, a court may determine that a child has more than two legal parents if there are multiple claims to parentage and adjudicating more than two parents is in the child’s best interests. See G.L. c. 209C, § 26(c).

No.  The MPA made no changes to those laws. 

As with any family law issue, individualized legal advice is recommended. GLAD Answers can provide information as well as referrals to local practitioners. If you have questions about how to protect your family, contact GLAD Answers by completing the form at GLAD Answers or call 800.455.4523 (GLAD). The National LGBTQ Bar Association also provides lawyer referrals.

GLAD Answers is available to provide legal information and resources.  Additionally, GLAD has collaborated on these resources:

• LGBTQ Paths to Parentage Security
• FAQ: Protect Your Family
• FAQ: Voluntary Acknowledgment of Parentage (VAP)
• Relationships at Risk: Why We Need to Update State Parentage Laws to Protect Children and Families