Victory for Massachusetts Families

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May 11, 2015
Karen Loewy

Last week, the Massachusetts Supreme Judicial Court (SJC) issued a ruling that’s great news for same-sex couples (and all married couples) seeking to use assisted reproductive technology (ART) as part of their family planning. In Adoption of a Minor (brought by Patience Crozier of Kauffman Crozier LLP and supported by an Amicus brief developed by our friends and partners at GLAD in Boston and signed by Lambda Legal and a broad range of  LGBT legal organizations, family law attorneys, and ART groups), the court unanimously clarified that a married same-sex couple are the sole legal parents of children born into their marriage using donated sperm and that they did not need to give notice to the donor before securing their parental rights through adoption.

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The couple in question conceived their son using a known sperm donor—the non-birth mother’s brother. Although they were both considered legal parents because they are married, the couple filed a petition to adopt their son to make sure that  they had legal rights as a family in states that may not recognize their marriage – or the non-birth mother’s parentage. A lower court acknowledged that the couple were the child’s legal parents, but denied their attempt to adopt without notifying the donor.

The SJC’s unanimous ruling states plainly that the married lesbian couple are both the lawful parents of their son and that no adoption is even necessary for that status to be established.  Regardless, in pursuing an adoption, the Court held that a sperm donor – known or unknown – is not entitled to notice of the proceeding.

This ruling sets forth a number of important safeguards for couples using ART to bring children into their families. First, the Court reiterated what it has held previously -- that both a birth mother and her spouse who consented to the ART are lawful parents. Second, the Court made clear that a sperm donor is not per se a parent.  The Court addressed the limited contexts in which a sperm donor can attempt to assert parentage of a child born to a married couple: (1) through a voluntary acknowledgement signed by both birth mother and donor (accompanied by an affidavit denying  parentage by the birth mother’s spouse), or (2) through an adjudication of paternity, which requires a demonstration of both biology and an established parent-child relationship.  These theoretical bases for establishing parentage in the future do not give a donor any right to notice or consent in an adoption proceeding.

Importantly, the Court honors the intentions of all of the parties involved in a child’s assisted conception, underscoring that genetic connections can’t be the exclusive basis for establishing parentage and that a sperm donor can only assert parentage when he donates/consents to assisted reproduction with the intent to be a parent.  Where the intent was for the couple to be the child’s parents rather than the donor, even “a potential change of heart, years hence, would not alter that conclusion.”  The Court also reiterated that even where the sperm donor is a family member of one of the spouses, in order to establish parentage, that sperm donor would have to prove the existence of a parent-child relationship, and not just that he’s an uncle, or cousin, or other family member.

This decision provides important clarity for both couples and donors: couples can utilize ART to bring children into their families with the knowledge that their parental rights are secure, and donors can assist those couples with the security of knowing that they will not be considered parents due solely to genetics.