Who are the people in this case?

The people in this case are Jo-, who is 7 years old, and Ja-, who is 4 years old, and their parents, Karen Partanen and Julie Gallagher.  Karen and Julie were together for 13 years, and had Jo- and Ja- together using doctor-assisted insemination, also known as assisted reproduction (AR). Karen and Julie split up in 2014, and Karen, the non-birth mother, is seeking to be named a legal parent to the children she has raised from birth.

How did the case develop?

When the unmarried couple in this case split up, Karen, the non-birth mother, filed two complaints: one to be declared a de facto parent, and one to be declared a full, legal parent under existing Massachusetts law, which would acknowledge her role and her responsibilities to the children. Julie has opposed both complaints.  At Julie’s behest, the parentage complaint was dismissed by the trial court in March 2015 and is the focus of this appeal, which was taken on direct review by the Massachusetts Supreme Judicial Court.

What are the legal issues in this case?

One question is whether the Massachusetts parentage laws (Chapter 209C) allow an unmarried same-sex couple both to be legal parents of their children when they used assisted reproduction to have them, and/or lived together and “held out” the children as their own. 

A related yet distinct question is whether a law (Chapter 46, section 4B) providing for immediate and dual legal parentage for children who are born of assisted reproduction to married couples must also protect the children of unmarried couples.  As a general matter, it is unconstitutional to deny to children born to unmarried parents the legal protections extended to children of married parents. 

What does a law about “paternity” have to do with same-sex couples having children?

Massachusetts’ comprehensive law, Chapter 209C, was put in place so that children who are born to unmarried individuals or couples can get a declaration of who their legal parents are. It is referred to as “the paternity statute” but its own terms say it applies to establish maternity, too.

Chapter 209C is a backstop for children and that was its principal purpose when passed.  It recognizes that children (and their parents) should have a route to determining who is a legal parent even when the parents did not marry and may not have adopted.  With a ruling about legal parentage, both parents must support the child financially (according to ability) and the court will make a judgment about dividing up custody (decision-making and parenting time) as best serves the children’s interest.   So far, unmarried same-sex couples have not had access to this law to establish parentage, and Karen’s case seeks to ensure that all children are protected whether their unmarried parents are same-sex or different-sex. 

In addition, there is the question of whether any unmarried couple (same-sex or different-sex) who uses AR has access to this law.  Chapter 209C was written before the widespread availability of assisted reproduction, which now accounts for about 5% of Massachusetts births.  GLAD believes the Legislature wisely crafted the law so that whether a child is “born to” a couple as a result of sexual or assisted reproduction, that child is protected by this law.  Other child-protective laws and policies in Massachusetts, as well as constitutional principles ensuring equal treatment for children regardless of the circumstances of their birth, apply here as well.

How does Karen prove she is a parent under the law?

If the Court agrees that Chapter 209C applies here, then the next question is whether Karen (and Julie) meet the test for “holding out” as parents, and Karen meets that test.  When Julie and Karen held themselves and the children out as a family, and held out Karen as a parent to those children, it means they told family, friends, the community, schools, and health care providers that Karen was their mother.  Other ways that they “held out” is by living together as a family unit, referring to Karen’s parents as grandparents, sending out joint birth announcements, and spending holidays and vacations together. With holding out comes responsibility for the children, too, and both women supported the children, and cared for and raised them in every way.

Another possible alternative is for the Court to apply the policy of the “artificial insemination” statute – section 4B – and decide Karen is a parent because Karen and Julie mutually consented to have children with assisted reproduction.

What is Julie’s argument?

In litigation, Julie has portrayed herself as a single parent whose rights would be violated by a court order in this case.  But Karen and Julie had these children together and from their infancy taught them to that they had two parents and two sets of extended family.  It doesn’t violate one parent’s rights when the other parent steps up to claim parental responsibility for the couple’s children. 

How does GLAD rebut Julie’s argument?

Julie has conflated “unmarried” parent with “single”.  Even in the legal briefing, Julie conceded that the parties “agreed to hold out as a family” and attested to Karen’s relationship with the children.  

It is not adequate protection for the children to allow Julie to assume the role of sole parent and dole out visitation to Karen, as she claims she will do.  Nor would it give adequate respect for Karen’s and Julie’s joint decision-making about having children and forming a family. They made decisions to have children together and now, for the sake of the children and more, they are responsible for those decisions.    

Why didn’t Karen and Julie jointly adopt the children?

Karen and Julie were living in Florida when the children were born. As the one who gave birth, Julie was their initial legal parent.  But Florida banned adoptions by same-sex couple at the time and legal uncertainty persisted until the ban was completely removed in 2015. The couple had moved to Massachusetts in 2012, where their relationship deteriorated. They separated in 2014, and when Karen sought to adopt, Julie opposed her.

Why didn’t Karen and Julie marry?

Karen and Julie believed they could be committed without marriage so it wasn’t a topic of discussion.  They did take other steps, such as signing up as domestic partners at Karen’s workplace and signing mutual wills and other documents.  It is also true that they it wasn’t legal for them to marry in Florida while they lived there.  Not all parents get married, which is what our law recognizes in Chapter 209C.

Why should Karen be considered a parent?

The children came into the world because Karen and Julie together made decisions to have children and to form a family with children.  Karen tried to get pregnant first, and then Julie tried and succeeded twice.  They agreed to this process, were viewed as a couple by the medical provider and underwent a required psychological evaluation together.  Karen was present at their births and has been Mommy to them since day one. Julie and Karen shared all parenting duties from night feedings to medical appointments to financial support. They held themselves out both as parents to the children and each other, as well as to their families, schools, doctors, friends, and community.  These children have two parents, and they should be able to be legally secured to both of their parents.

What is the status of this case?  Oral arguments were heard before the SJC on April 5, 2016, and we are now awaiting a decision.