Powerful Testimony at Massachusetts Parentage Act Hearing

Yesterday, 20 years to the week after Massachusetts became the first U.S. state to legalize marriage equality, LGBTQ parents and others testified in support of legislation to finally update the state’s parentage laws so that children of LGBTQ parents—and all children—have equal access to the security of legal parentage.

Stories of Inequality

Karen Partanen remembers her son’s fingers being “pried off my neck as he was screaming,” when her two children were taken away as part of a bitter custody dispute in 2014. “They couldn’t understand why I wasn’t there anymore,” she said. Partanen, the non-gestational mother, was not recognized as the children’s legal parent, despite planning for and raising them with her former partner. Only after a lengthy court battle that drained her savings did the Massachusetts Supreme Judicial Court grant her parentage. Now, however, she testified to the Legislature’s Joint Committee on the Judiciary yesterday, the state’s parentage statutes “still aren’t updated” and families are still fighting to secure their rights.

Eighteen-year-old James Nichols-Worley was born to two dads via gestational surrogacy. In 2004, he was first person in Massachusetts to have two dads listed on his birth certificate via a pre-birth parentage petition. Yet “The same laws that made my case historic have not been updated,” he told the committee.

Grace Moreno, executive director of the Massachusetts LGBT Chamber of Commerce and the nongestational mother of two, told of traveling to Canada with her wife when their child was three months old, before her co-parent adoption had been completed. Even though both of their names were on the child’s birth certificate, they were refused entry into Canada by a border guard who insisted they couldn’t take the child into the country without a letter from the father. Only because of a fortuitous connection she had to then-Senator Kennedy’s office, which intervened for them, were they finally allowed to travel.

Twenty-two-year-old Jean Azar-Tanguay was born to two dads via gestational surrogacy, she testified. Her original birth certificate listed the surrogate and her genetic dad. It took more than a year to get one listing both dads. In the interim, the surrogate “had more legal power over me” than her nongenetic dad, who was changing her diapers in the middle of the night. “Blood does not define parentage. Actions do,” she said.

Geoff Worrell, a father of three and grandfather of seven, testified that he was “shocked” to learn that his daughter would have to adopt the twins that her wife carried. “Instead of starting a college savings plan for my first grandchildren, my ‘gift’ was a contribution to her legal fund so that my daughter’s parental rights could be preserved,” he said.

Theodore Paul, a transgender man, spoke of starting a family with his partner, who carried the pregnancy. When their 3-month-old child was hospitalized with a medical emergency, he had to hope that they “passed” well enough as a straight couple so that the hospital would not question his right to be there, as he was not a legal parent. Immediately afterwards, they pursued a co-parent adoption, fortunate to have the time and money to do so. “It felt surreal having to ask friends and family to write affidavits attesting to our commitment to each other and our child,” he said. Because they were not married, however, it took extra time—nearly a year in which his child was vulnerable.

Jordan Budd, executive director of COLAGE, the national organization for people with one or more LGBTQ parents, also observed, “Massachusetts has the highest rate of births through assisted reproduction.” Those families need “comprehensive protections” and “clarity that gamete donors are not parents. These deficits directly impact children with queer parents and it harms them in material ways,” he said.

Seventeen-year-old Darmany Jimenez spoke about his biological mother’s mental health challenges (and the absence of his biological father) that led to him being raised by her close friend, who has “always been simply my mom.” Massachusetts law, however, does not see her “de facto” parent status as equivalent to a full parent, offering only limited protections to their relationship. Yet “Her love and commitment are undisputed,” he said. “I turn 18 next month,” he added, but “I still want this bill to be passed so that her and my little brother’s relationship can be legalized.”

A Bill for Change

The need for the state’s parentage laws to be updated is undeniable. Yet Massachusetts, despite leading the nation in marriage equality, is now the only New England state that has not comprehensively reformed its parentage statutes to account for the diversity of family forms today. An Act to Ensure Legal Parentage Equality (HD.1713/SD.497), also known as the Massachusetts Parentage Act (MPA), would do that.

A version of the MPA introduced in Massachusetts last session had bipartisan support and gained a hearing before the Judiciary Committee in November 2021. It was, however, unable to move to the next stage of the legislative process during a busy legislative session. A new version of the bill was introduced this past February and again has bipartisan backing.

Lead House sponsor Sarah Peake (D-Provincetown) explained to the committee that the bill addresses the current “hodgepodge” of parentage case law and statutes by providing a clear path to parentage for children born through assisted reproduction and surrogacy, strengthening protections for children of de facto parents, and expanding Voluntary Acknowledgments of Parentage (VAPs) (about which more here) to all parents. “The country has become a scary place for people in the LGBTQ community,” she said. Now, she said, it’s time “to stand up for LGBTQ families and really for all families across the Commonwealth.”

Lead Senate sponsor Julian Cyr (D-Truro) said, “We were the first state in equal marriage, but we’ve been resting on our laurels.” Current laws, he said, are “leaving families in vulnerable positions.” His own sister and sister-in-law “had to jump through legal hoops” to secure their parentage.

He also noted that courts in several other states, including Oklahoma, Idaho, and Pennsylvania, have recently refused to recognize the “marital presumption of parentage” (the legal concept that any children born during a marriage are children of both spouses) for LGBTQ mothers, making it more critical that Massachusetts offer ways for LGBTQ parents to secure their parentage.

Lead House sponsor Hannah Kane (R-Shrewsbury), also shared that her own daughter is part of the LGBTQ community. “I want to make sure she has the same protections my other children will when they form their families,” she said.

And Senate sponsor Bruce Tarr (R-Gloucester), said in a statement following the hearing, “No child in Massachusetts should be subjected to the uncertainty and hardship caused by the absence of clearly written laws and the inconsistency of court decisions in that absence.” The MPA “will create clear legal pathways to establish parentage in an efficient and predictable manner that will benefit children and families.”

Legally Sound

Polly Crozier, director of family advocacy at GLAD and a nonbiological mother, testified, “This bill ensures parentage equality for all children in the Commonwealth. It’s simple and it’s so important. We currently operate in a system with unconstitutional aspects that render some of our children and families second-class and outsiders.”

The bill has been drafted with state and national experts “to align Massachusetts with best practices,” she said.

Doug NeJaime, Anne Urowsky Professor of Law at Yale Law School, told the committee, “The MPA is child centered and would meet the state’s constitutional obligations to children and parents, ensuring that children’s parental relationship are protected regardless of their parents’ gender, sexual orientation, or marital status.”

He also spoke of the bill’s provisions giving equal legal status to de facto parents. Two-thirds of U.S. jurisdictions have de facto parentage or an analogous doctrine, he explained—but Massachusetts is one of just four states that gives them no more than a right to seek visitation. Other states grant custody on a “best interests of the child” standard, and “The clear trend is to treat de facto parents as legal parents,” he asserted.

“A child-centered law would protect children’s relationships with the individuals who are functioning as their parents,” he said. The MPA “gives courts a clear standard and provides greater security for children.” Not just anyone can become a de facto parent, however; the MPA’s standard for establishing a de facto status is rigorous, “the most demanding that I’ve seen in my research,” he said.

Timely and Needed

Crozier stated, “It is a terrifying time for LGBTQ families in this country,” as the Supreme Court’s Dobbs decision threatens to overturn national marriage equality; as “there remains a patchwork of parentage protections in states throughout the country”; and as “we see extremist forces expanding their rhetoric.”

She seemed hopeful for the MPA, however, noting, “I think equality is in our DNA. This is the week. The 20th anniversary of the Goodridge decision,” which legalized marriage equality in the state. She stressed, too, that it wasn’t just the court that made marriage equality happen. After the ruling, some people sought to amend the state constitution to prevent same-sex couples from marrying, but “It was the legislature’s key role and triumph in stopping the constitutional amendments that sought to undermine equality.”

Crozier now told legislators, “Wanting to build and protect your family is a basic human hope that so many of us share. We hope you will make a simple but profound statement, that our laws protect all of the diverse families that are in this Commonwealth.”

For more about the MPA and why it is needed, visit the MPA website, and follow “massparentage” on Twitter, Facebook, and Instagram.

For more on why marriage alone, or simply being on your child’s birth certificate, is not enough for LGBTQ parents to secure legal parentage, visit LGBTQparentage.org, a guide that GLAD and I developed.

If you live in Massachusetts, ask your state senators and representatives to co-sponsor the MPA (or thank them if they have).