Yes, even in Massachusetts, the first state to have marriage equality, same-sex parents have had to fight for their rights—not least because the benefits of marriage don’t cover unmarried parents. Today, however, saw a clear victory for one unmarried nonbiological mother and her children.
Karen Partanen’s situation was similar to that of far too many nonbiological mothers after breaking up with their children’s biological mothers. GLAD, which represented Partanen, shared some of the background:
Julie Gallagher and Karen Partanen were a couple for nearly 13 years. They met in Massachusetts and later moved to Florida. While living there, they bought a home and decided to have children together. With Karen’s consent and full involvement, Julie conceived two children through assisted reproduction, and they parented them together. Karen and Julie later moved back to Massachusetts and separated. Their two children are now 4 and 8.
The two women never married. Partanen requested visitation and shared legal custody, and filed two complaints, GLAD explains, “one to be declared a ‘de facto’ parent, which currently provides for rights of visitation but does not confer the full legal and familial advantages of parenthood on the children, and another to be declared a full, legal parent under existing Massachusetts laws, which would acknowledge her role and her responsibilities to the children.”
A court granted her “de facto” parentage in September 2015, but Partanen’s attempt to establish full legal parentage was dismissed last year by a trial court, which said that because she was not a biological parent, she had no standing to seek it. Partanen appealed to the state’s Supreme Judicial Court, and was represented in court by Mary Bonauto, the attorney who argued the landmark marriage equality decisions in Massachusetts and at the U.S. Supreme Court, along with family law practitioners Patience Crozier, Elizabeth Roberts and Teresa Harkins La Vita.
The court today ruled resoundingly in Partanen’s favor, writing, “We consider the question whether a person may establish herself as a child’s presumptive parent … in the absence of a biological relationship with the child. We conclude that she may.”
It also said that current laws, although gendered, must be read in a gender-neutral way so as to include same-sex couples and their children, even when they refer to a child “born to” the couple (my emphasis):
While the provisions at issue speak in gendered terms, they may be read, as discussed, in a gender-neutral manner, to apply where a child is “born to [two people],” … is received into their joint home, and is held out by both as their own child…. The plain language of the provisions, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.
Additionally, the court leveled the playing field for married and unmarried parents. It observed that if the children had been born to a married couple using artificial reproductive technology, they would have had two legal parents. Therefore, it said, “We decline to … [leave] children born to unmarried couples, using the same technology, with only one such parent.”
This is a praiseworthy and equitable interpretation of parentage laws—an interpretation that means children may be supported by both parents who are raising them, if the parents separate. It also allows custody and visitation to be determined based on the children’s best interests, not on which parent shares genetics with them or whether the parents had the time, money, and inclination to marry.
I’m proud to be parenting in the Bay State today.
