The Women’s Bar Association signed on to an amicus brief in the case of Karen Partanen v. Julie Gallagher – supporting the position which would extend protections to non-married parents who used assisted reproductive technology to conceive a child. In its recent decision, the Supreme Judicial Court effectively rendered the Massachusetts paternity statute (MGL c. 209C) gender neutral by holding that parentage may be established so long as a non-married couple intended to create a child together and each of them outwardly represented themselves as the child’s parents. Congratulations to everyone – including Mary Bonauto, C. Thomas Brown, Patience Crozier and WBA members Elizabeth A. Roberts, Teresa Harkins La Vita, and Joyce Kaufmann representing the plaintiff - who worked on this case and helped extend protections to same sex couples and their children.
See below for the State House News article:
SJC UPHOLDS PARENTING RIGHTS OF SAME-SEX PARTNER
By Andy Metzger
STATE HOUSE NEWS SERVICE
STATE HOUSE, BOSTON, OCT. 4, 2016.....The parenting rights of a mother in a same-sex relationship extend even when the couple is unmarried and the mother has no biological connection to the children, the state's highest court ruled Tuesday.
In a decision written by Justice Barbara Lenk, the Supreme Judicial Court overturned a Middlesex County family court's dismissal of Karen Partanen's parentage claims. "This is what I was trying to get at the whole time," Partanen told reporters on a conference call. She said of her children, "We're both part of the family and they should have access to us."
Partanen and Julie Gallagher, while living in Florida, decided in 2005 to start a family, according to the decision, which said that Partanen unsuccessfully attempted in vitro fertilization. After that, Gallagher underwent similar treatment in 2007, giving birth to a baby girl, according to the decision which said, Gallagher gave birth to a son in 2012, and Partanen participated in raising the children as a parent. In May 2012 the family moved to Massachusetts, where Partanen and Gallagher had lived previously and where in November 2013, the couple split up.
Partanen told reporters she did not seek to legally adopt her children in Florida because of her understanding of the state's laws at that time. According to Tuesday's decision, adoption became available to same-sex couples in Florida in 2010. Gallagher has argued that her status as the biological mother who gave birth to the children should elevate her parental status above Partanen's.
"The children were born to a single woman, a woman who, by choice, chose to become pregnant via artificial insemination while unmarried," read a brief by Gallagher's attorney, Jennifer Lamanna. "The children have one legal parent, and have not been denied the protection of any laws based upon that status."
Lamanna said Tuesday's decision "clarifies" where people stand on parentage rights.
"You're going to have to overtly proclaim to the world that you are not establishing a two-parent family," Lamanna told the News Service. She said, "It puts people on notice of what their conduct can lead to." Partanen's lawyer, Mary Bonauto of GLBTQ Legal Advocates & Defenders, told reporters the children would benefit by having two legal parents.
"She's not somebody you visit once in a while. She is a parent," Bonauto told reporters. In a statement, she said, "This decision is a major victory for contemporary families, which are formed in so many different ways. It is especially a victory for the children in those families who should not be deprived of their parents because those parents are not married or used assisted reproduction."
"My children have two parents. They have me as mommy. And they have Julie as momma," said Partanen. The children are now 4 and 8, and Partanen said she lives in Burlington.
Bonauto said she believes the ruling applies to heterosexual parents as well, and the decision gives Partanen all the rights of a parent. Bonauto said Partanen was seeking to retain her rights to spend time with her children as a parent. Asked if Partanen could attempt to gain sole parental rights, Bonauto said, "Theoretically under this statute, that's possible," but, "That's not what this case is about." She said, "Karen's not trying to take their other parent away from them in any way."
In 2003, the Supreme Judicial Court made Massachusetts the first state in the nation that allows same-sex couples to marry. Tuesday's decision addresses the rights of people who go their separate ways after parenting a child together. Bonauto said broadly similar court decisions have been made in New York and Maryland.
Jeffrey Abber, the Middlesex Probate and Family Court judge whose dismissal was overturned, was an appointee of former Gov. Deval Patrick and was confirmed to the court in 2010. "The absence of a biological link further limits Karen's relief," Abber wrote. Quoting an earlier case, he wrote, "By definition [however] a person who is not the biological father of a child cannot establish paternity."
Attorney General Maura Healey's office filed an amicus brief where Andrea Kramer, the chief of the civil rights division, argued that, "If one act of sexual intercourse can require two individuals - who may or may not have any type of ongoing relationship and who may or may not have intended to consent to the creation of a child - to share legal parentage of the resulting child without unconstitutionally infringing on either of their individual rights," then a joint decision by a couple to use artificial reproductive technology "can surely do the same."
Under a separate decision that Gallagher has appealed, Partanen was granted the status of "de facto" parent, which has allowed her to continue seeing her children, according to Bonauto, who said people can attempt to gain that status when they develop a parental relationship with a child with the consent of the parent but it is difficult to achieve.
Partanen gained her legal parental status under a statute that requires unmarried parents to have received the children into their home and to have held them out for the world as their own children. Partanen participated in the insemination procedure for her younger child and was present at both births, according to the decision. The decision said the couple represented themselves as parents at the children's schools and said, "They vacationed as a family, shared expenses, purchased joint assets, and sent family holiday cards."
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