June 15, 2023
LGBTQ+ Families at Risk: Updating Parentage Laws To Protect LGBTQ+ Parents and Their Children
GLAD is leading the effort to pass the Massachusetts Parentage Act (H 1713 / S 947) and to safeguard LGBTQ+ families across the country
A child’s legal tie to their parents is never more critical than when their family is in crisis. Massachusetts LGBTQ+ non-biological parent Simone* found this out in the most heartbreaking way when her son Daniel was abruptly removed from their home and placed in foster care at age three because of unfounded claims of neglect.
“They took him on a Friday and said we could visit him on Monday,” says Simone. “But when I showed up, they wouldn’t let me see him because they didn’t recognize I was his parent.”
Daniel was born prematurely out of state to Simone and her then-partner, Cara, who was the birth parent. Even though she and Cara planned together to build their family through assisted reproduction, although Simone was his primary caregiver, and the fact that she and Cara told the whole world they were both Daniel’s parents and married days after his premature birth — the Department of Children and Families wouldn’t recognize Simone as a parent.
Simone wouldn’t see her son again for two months. That was the beginning of Simone’s legal journey — one in which she sometimes wasn’t allowed in the courtroom where her family’s fate was being decided because the system considered her a legal stranger to her child. With GLAD’s help, Simone’s legal parentage was clarified, and she became able to participate in proceedings involving her beloved son. Then, the COVID pandemic hit. The delay in recognizing her as a parent, coupled with the pandemic, meant that Daniel spent more than two years in foster care — when he should never have been in foster care to begin with.
Simone should have been recognized as a parent under the “holding out” provision in Massachusetts law, in accordance with the Supreme Judicial Court’s ruling in our case Partanen v. Gallagher that children born to an unmarried couple through assisted reproduction have the same protections as children born to an unmarried couple through sexual intercourse. Despite that ruling, state parentage laws remain gendered, making them unclear for parents, courts, and entities like DCF, which can harm children and families. It is critical to update parentage statutes in Massachusetts and elsewhere to explicitly include all families, regardless of gender, marital status, or the circumstances of the child’s birth.
The Massachusetts Parentage Act (MPA) (H 1713/S 947) ensures equality for LGBTQ+ families and their children. It clarifies existing law and creates accessible paths to establish legal parentage for all children so that the parentage bond is clear from the outset in situations such as Simone’s.
GLAD Director of Family Advocacy Polly Crozier is leading efforts to pass the MPA and to ensure LGBTQ+ families and their children are protected across the country. This work is increasingly urgent as anti-LGBTQ+ bias escalates in legislatures and courtrooms.
A judge in Oklahoma recently stripped a non-birth lesbian mom of her marital presumption of parentage because she didn’t adopt her child. Courts in Idaho, Michigan, and Pennsylvania have likewise stripped children of their non-birth LGBTQ+ parent, using outdated parentage laws as justification. And LGBTQ+ families across the country are under siege by a wave of anti-LGBTQ+ legislation, such as Florida’s “Don’t Say Gay or Trans” law that aims to make our families invisible in schools.
“It’s heartbreaking and disturbing to see hard-won legal recognition and family protections being undermined or simply taken away,” Crozier says. “With extremists escalating their attacks on LGBTQ+ people and families across the country, it is more important than ever to ensure LGBTQ+ families everywhere have the recognition and legal security they need — even in Massachusetts.
Indeed, outdated parentage laws mean LGBTQ+ parents in the Commonwealth face costly, demeaning, and discriminatory barriers to securing legal ties to their children. That leaves their families vulnerable here at home, and even more so if they travel or move to a less friendly state.
In recent months, courts in Massachusetts have issued:
- additional requirements for LGBTQ+ couples wishing to adopt that are not required of other families.
- an order with the impossible condition that an LGBTQ+ couple who built their family using an unknown gamete donor provide notice to the “father.”
- an order – without request or prompting from either party in the case – questioning the parentage of a lesbian mother who had signed, with the birth mother, a valid Acknowledgment of Parentage (VAP).
Despite VAPs being available to unmarried LGBTQ+ parents since 2018 in response to a Supreme Judicial Court ruling, the judge questioned the VAP because Massachusetts parentage law has still not been updated in line with the ruling.
Passing the MPA this session is critical for our families and for Massachusetts to continue being a leader on LGBTQ+ protections and equality.
In response to the shifting legal landscape for LGBTQ+ families, GLAD, LGBTQ MAP, COLAGE, NCLR, and Family Equality have released a special report, Relationships at Risk: Why We Need to Update State Parentage. Laws to Protect Children and Families, detailing how the current patchwork of parentage laws across the country — many of which haven’t been updated in decades — leaves children and their families vulnerable.
The report also offers a path forward, highlighting states that have taken crucial steps to update their parentage laws in recent years, like Connecticut, Rhode Island, Vermont, Maine, and Colorado. These updates ensure that state laws are constitutional and treat all children and families equally. They also provide LGBTQ+ parents equal access to Voluntary Acknowledgments of Parentage — an equivalent of a court judgment of parentage that can be completed through a simple form in the hospital when a child is born.
Some states are working even harder to build additional protections for LGBTQ+ families. Legislators in Rhode Island and Maine are working to advance bills this session to streamline the process of confirmatory adoption — providing parents who are already legal parents under their states’ laws with additional security to protect their families against hostile courts or legislatures if they travel or move.
Read Relationships at Risk: Why We Need to Update State Parentage Laws to Protect Children and Families and get more information about parentage equality at GLAD.org/parentage-report.
This story was originally published in the Summer 2023 GLAD Briefs newsletter. Read more.