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July 7, 2022

Legal Update
Svana M. Calabro

Protecting All Families: The Massachusetts Parentage Act

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Although many consider Massachusetts a leader in social change, the Commonwealth is falling behind in ensuring the same legal rights to all parents, regardless of the circumstances of their children’s birth. The Massachusetts Legislature is considering the Massachusetts Parentage Act, a bill that would codify the rights of non-biological parents, including unmarried LGBTQ+ parents and parents of children conceived through surrogacy or assisted reproductive technology. Proponents of the bill argue that the state’s current parentage statute, G.L.c. 209C, does not adequately protect the parental rights of diverse modern families.   

What Is Parentage?

“Parentage” refers to the legal relationship between a parent and child. Recognizing parentage allows a parent to participate in all the major decisions in a child’s life, from medical care to education to where the child lives. Establishing parentage allows parents to act as equal partners in raising their children.  

What Is the Current Law?

  1. L. c. 209C, enacted in 1986, governs the parental rights of unmarried parents and is showing its age. G. L. c. 209C refers to the child’s parents using gendered language, namely “mother,” “father,” and “paternity,” and emphasizes a biological connection between a parent and child. The statute does not contemplate the wide range of family structures we see today, from LGBTQ+ unmarried parents to parents who conceived their child through surrogacy or assisted reproductive technology. 

Nevertheless, settled case law supports expanding parentage rights beyond strictly biological parents. As far back as 1999, the Supreme Judicial Court (SJC) recognized that a child may have a “de facto parent.” A de facto parent has no biological connection to the child, but has acted as the child’s family member, lives with the child, and participates in at least the same level of caretaking as the legal parent. More recently, the SJC confirmed that a de facto parent of children conceived through assistive reproductive technology might have rights under G. L. c. 209C. The SJC reasoned that both the biological and non-biological parents were involved in raising the children and that the couple held the children out as their own to other people.  

Why Do We Need to Change It? 

Although case law supports parentage rights for non-biological parents, there is no clear-cut legal mechanism for those parents to establish their rights.    

Parents can agree to sign a “voluntary acknowledgment of parentage (VAP),” which establishes parentage rights without the need for court intervention. However, a VAP is only available to unmarried couples. Married couples who use a surrogate or assisted reproductive technology cannot use VAPs to establish their parental rights. Massachusetts has the most children born through assisted reproductive technology of any state in the country, compounding the need for a path to establishing parental rights for those families.   

Moreover, de facto parents seeking to establish parentage through the Court system have experienced inconsistent outcomes. Courts have responded to complaints to establish parentage on a case-by-case basis, resulting in inconsistent outcomes for similar situations. Moreover, it can take years for a case to make its way through the court system, leading to situations where parents are separated from their children for months or years.  

The lack of protection for de facto parents hurts families by depriving children of willing and capable parents. If the parents separate after the child’s birth, a de facto parent can lose all their parental rights, even if they have acted as the child’s parent for years. Notably, de facto parents may not be allowed to participate in termination of parental rights cases initiated by the Department of Children and Families, meaning children could be needlessly sent into foster care.  

What Is the Massachusetts Parentage Act, and How Would It Help?

If enacted, the Massachusetts Parentage Act would amend G. L. c. 209C to be more inclusive of non-biological parents. It would replace G. L. c. 209C’s outdated language with gender-neutral terminology, including families from all backgrounds. It would also create a new chapter of the parentage statute, 209E, to address children born through assistive reproductive technology and surrogacy. The Massachusetts Parentage Act is based on the Uniform Parentage Act, a model law that Maine, Rhode Island, Vermont, California, and Washington have already adopted.  

The Act would create statutory parentage rights for children born to unmarried LGBTQ+ parents or through assisted reproduction, or surrogacy. It would provide a clear, consistent avenue for de facto parents to protect their rights to raise and care for their children, even if they separate from their partners. The Act would also expand access to VAPs, reducing the amount of litigation in the courts. Most importantly, it would promote recognition and respect for all families and ensure that children are not treated differently under the law simply because they were born into a diverse family structure. The Legislature should take advantage of the opportunity to expand rights for all families by passing the Act before the end of the Legislative session.  

At Sugarman Rogers, we welcome the opportunity to work with clients from all backgrounds. If you have questions about establishing your parental rights, please contact one of the attorneys from our Domestic Relations/Probate practice group.