MA SJC Issues Ruling Securing Parentage for Child Born Through Surrogacy and Calls on Legislature to Modernize Statutes to Protect All Children

Boston, MA – Today the Massachusetts Supreme Judicial Court (SJC) ruled in Adoption of Daphne that the state Probate and Family Court clearly has jurisdiction to establish the parentage of a child born through gestational surrogacy in Massachusetts to an intended parent living outside the United States. Specifically, the SJC concluded there was personal and subject matter jurisdiction in the trial court to permit the adoption petition to proceed.

“The Supreme Judicial Court found that the Probate and Family court had clear jurisdiction over this adoption, and noted in its opinion that a delay in securing legal parentage is harmful to children,” said Kathleen DeLisle, attorney with Nichols, DeLisle & Lightholder, P.C., which represented the petitioner. “The delay in establishing this child’s security was contrary to her best interest and not in keeping with the intent of the legislature. I’m relieved that these parents will finally be able to move forward with their adoption so that their daughter has the legal protection she needs and deserves.”

The case stems from an adoption petition first filed two years ago when the child was an infant. The petitioner, who is the intended and genetic father of the child, entered into a gestational carrier agreement with the Massachusetts gestational carrier, and the child was born in February 2018, in Massachusetts. The father and his male partner, who are unmarried due to legal constraints in their country, planned with care to create their family and sought, with agreement of the gestational carrier, to secure and clarify their daughter’s parentage soon after her birth. After considerable delay, the Probate and Family Court rejected the adoption petition – without hearing and with prejudice – on the grounds that it did not have jurisdiction because the intended parents and the child had left the state. The Supreme Judicial Court directed the Probate court to allow the adoption petition to proceed.

In today’s opinion, the SJC also urged the Massachusetts legislature to establish more efficient processes for obtaining post-birth judgments of parentage for families formed through gestational surrogacy. Pending legislation, the Massachusetts Parentage Act, which is based on the model Uniform Parentage Act cited in today’s opinion, would accomplish that.

“I’m thankful to the Supreme Judicial Court for recognizing in this ruling that a child born in Massachusetts through surrogacy has an equal right to an expedient legal declaration of parentage, and for calling on the legislature to join our sister New England states and enact legislation modeled on the Uniform Parentage Act to ensure our statutes protect all children and ensure that all children – including those born through assisted reproduction and surrogacy – have clear and equal access to the security of a legal parent-child relationship.” said Polly Crozier, GLAD Senior Staff Attorney at GLBTQ Legal Advocates & Defenders (GLAD), which submitted an amicus brief in the case. “GLAD is working with a coalition of child, fertility, and parentage advocates to pass the Massachusetts Parentage Act, which will provide critical guidance for courts and for families. The legal parent-child bond is core to the stability and well-being of children, and it is from this core relationship that parental rights and responsibilities flow including the right to healthcare and education decision making. Especially now in the midst of the COVID-19 crisis, we must ensure that all children are secured to their parents and have access to these core protections.”