Tuesday, October 4, 2016

It's a trifecta! Massachusetts find nonbio mom to be full legal parent

After wins in New York and Maryland, Massachusetts becomes the third state in three months to recognize the reality of life for children planned for and then raised by same-sex couples.  Today's win in Partanen v. Gallagher is the most satisfying of the three, finding that Karen Partanen is the full legal parent of the two children born to her partner.  The couple planned for those children together, participated in the IVF process that resulted in Gallagher's pregnancy, and raised the children as two parents until they separated when the first child was 5 years old and the second about 21 months old.

The opinion approves several critical legal principles:  Parentage statutes must be read in a gender-neutral manner.  Therefore, Massachusetts statutes concerning parentage of a child born to "a man and woman" not married to each other apply equally to the two unmarried women in this case (and, as a footnote makes clear, to two unmarried men); the two children in this case were therefore born to both Gallagher and Partanen.  The children would have two legal parents if their parents had been married, and the court will not read other statutes in a way that keeps children with unmarried parents from having two parents. Partenan's claim does not infringe upon Gallagher's right to form a family as a single parent because the children were not born to her as a single parent; they had two parents from the very beginning. Also, statutes presuming parentage based on living with a child's mother and jointly holding the child out as the child of both parents are not defeated by the lack of a biological connection between the "holding out" parent and the child.

Kudos to GLAD attorney Mary Bonauto, who also gets a huge amount of credit for the passage of pathbreaking parentage legislation in Maine that took effect July 1, 2016.  That legislation should be a model for other states looking to reform their parentage laws for all children.  Under the Maine statute, the nonbio parents in the New York and Maryland cases, as well as Karen Partanen in this case, would all be the legal parents of their children.

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