Massachusetts, which led the nation in marriage equality, has fallen behind in protecting the children of LGBTQ parents. It is now the only New England state that has not comprehensively reformed its parentage laws to protect children regardless of the circumstances of their birth or the gender or marital status of their parents. The Massachusetts Parentage Act (MPA), a bill now in the Legislature, could change that.
Our families have outpaced the law.
“Our families have outpaced the law,” said Polly Crozier, senior staff attorney at GLAD (GLBTQ Legal Advocates & Defenders), in an online panel June 30. Crozier, a nonbiological parent herself, explained that the state’s parentage statutes are outdated—using gendered language, focusing on biological connections, and offering no statutory protections for children born through assisted reproduction to unmarried parents or through surrogacy. The last is a particularly egregious deficiency since Massachusetts is the state with the most children born through assisted reproduction.
The Massachusetts Parentage Act Coalition (MPAC), a group of more than 30 organizations and individuals advocating for the MPA, notes on its website (massparentage.com) that while the rights of children with LGBTQ parents have been recognized by courts, this has been on an ad hoc basis, and not through proactive, comprehensive statutory reforms. Massachusetts also has no statutory guidance for how to resolve competing claims of legal parentage. That can make these rights harder to access, requiring extensive litigation. “There are no consistent standards for courts to apply, and some people wait for years to secure their most foundational relationship to their child,” Crozier said.
The current statutory gaps “cause tremendous harm,” she said, noting a case in which she represented a mother whose child was removed by the Department of Children and Families and placed in foster care for almost two years because it wasn’t clear that the mother was a legal parent.
The MPA (S.1133 / H.1714), which was drafted by GLAD, Resolve New England (a fertility education and advocacy group), and other parentage law experts, and introduced by Sen. Bruce Tarr (R) and Rep. Kay Khan (D), has several key goals, Crozier said: ensuring equality for all children and thus ensuring the constitutionality of state statutes; improving access to the protections of legal parentage (for example, by creating those protections as close to birth as possible and not requiring court visits); and offering greater guidance to the courts so there is consistency across the state.
The MPA clarifies who can be a parent and the many ways to establish parentage; clarifies that de facto parents (someone who has functioned as a parent with consent of the legal parent) have equal rights and responsibilities to any other type of parent; removes gendered language from parentage statutes; and adds protections for children born through assisted reproduction, including surrogacy. The MPA does not, Crozier noted, change any laws around custody, visitation, or child support.
The bill also expands access to Voluntary Acknowledgments of Parentage (VAPs). Federal law requires that every state have a simple process to establish a child’s parentage at birth outside a court, explained Crozier. VAPs do this and can even be completed at a hospital. They have traditionally been available to a woman who gave birth and a man not her spouse who claimed to be the genetic parent of the child. Ten states, however, now allow parents of any gender, including intended parents through assisted reproduction, to use them. And unlike a birth certificate, a VAP is equivalent to a court decree and gets “full faith and credit” recognition in other states. Current VAPs in Massachusetts, however, were the result of a Supreme Judicial Court ruling, not codified by statute, and are only available to unmarried couples (albeit of any gender). The MPA would extend them to married couples and enshrine them in statute. The goal of VAPs, Crozier said, is to make securing parentage “as simple and as straightforward and accessible as possible and to obviate the need for co-parent adoption,” though the latter should remain an option for those who want them.
The MPA is based on the 2017 Uniform Parentage Act (UPA), model parentage legislation developed by the Uniform Law Commission, a non-partisan body of state lawmakers, judges, scholars, and lawyers. Several states have already adopted provisions of the UPA, including Connecticut, which enacted a comprehensive update to its parentage laws in June, and Maine, which in June extended VAPs to LGBTQ parents.
The MPA is now in the Joint Judiciary Committee. The committee has not yet scheduled a hearing, but it could be any time in the next few months. MPAC is therefore asking people to take several actions now in support of the bill:
- First, ask your state senator and representative to co-sponsor the MPA (or thank them if they have). If your legislators are not on the Judiciary Committee, ask them to tell Judiciary Committee members how important the bill is to them and their constituents.
- Submit your own written testimony to the Judiciary Committee about what the bill means to you. The MPAC website has a template for this that you can personalize—and if you would like help with your testimony, please reach out to Crozier or Kate Weldon LeBlanc, executive director of Resolve New England.
- Additionally, if your legislators are on the Judiciary Committee, please contact Crozier or LeBlanc.
- Finally, follow “massparentage” on Twitter, Facebook, and Instagram and help spread the word on social media.
Crozier is heartened by the progress already made throughout New England, “We’ve really had a positive experience,” she said, noting that she’s spoken with “diverse legislators and constituents and organizations” who understand that the bills are about protecting children. “At the heart of this,” she asserted, “is making sure that every child has an equal path to the security of legal parentage.”