UPDATE: The parentage act was enacted by the legislature on August 1, 2024 and Governor Healey signed it on August 12, 2024. It is now the law of the Commonwealth. 20 years from Marriage Equality to Parentage Equality.
Senator Julian Cyr and Representative Sarah Peake are the lead sponsors of An Act to Ensure Legal Parentage Equality. This Act is a Massachusetts-specific adaptation of the 2017 update of the Uniform Parentage Act developed by the respected Uniform Law Commission. I will refer to the Act as the Massachusetts Parentage Act (“MPA”).
The MPA has been filed for several sessions. I hope we are able to finally pass the MPA in this session. The MPA protects children and parents and provides guidance for resolving disputes about parentage. It is perceived as especially important by members of the LGBTQ community who wish to have children, but it benefits children and parents in a wide range of situations.
Overview
Essentially, the MPA updates and extends Chapter 209C of the General Laws which speaks to the parentage of children conceived by unmarried parents. The MPA rewrite of Chapter 209C speaks more broadly to the full variety of parentage including not only unmarried parents, but also parents using assisted reproduction, including LGBTQ parents.
The central motivation of the MPA is embodied in this summary language added to Section 1 of Chapter 209C:
Every child shall have the same rights and protections under law to parentage without regard to the marital status, gender, gender identity or sexual orientation of their parents or the circumstances of their birth, including whether they were born as a result of assisted reproduction or surrogacy.
An Act to Ensure Legal Parentage Equality, Senate 947, Section 3
Meaning of Parentage
Parentage is the legal relationship between a child and their parent or parents. It is the legal relationship from which all rights flow to a child, and it is a cornerstone of a child’s well-being and stability throughout their lifetime. Aside from all that parentage means emotionally to both parent and child, parentage entails certain rights, responsibilities, and entitlements. The basic elements include:
- Physical custody — custody of the physical person of the child
- Legal custody — the right to make legal decisions for the minor child
- “Parenting time” — the right to have contact with the minor child
- Child support — the obligation to contribute to the financial support of the child
Additionally, parentage has various consequences in relation to other laws and programs, including:
- A parent with a dependent child may derive tax benefits
- A parent with a dependent child may gain the entitlement to collect additional welfare support
- A child of a parent with health insurance may be listed as a covered family member
- A child may be entitled to collect social security benefits, disability benefits, pension benefits, veterans benefits, and/or inheritance
Sharing parentage in more complex situations
When married people conceive through sexual intercourse, legal parentage is automatically shared by the two parents. There is a need for an explicit legal allocation of parentage (a) if the two married parents separate or divorce; (b) when unmarried people conceive and remain unmarried; (c) if a long-term caretaker for a child functions as a de facto parent; (d) in cases of assisted reproduction, especially cases involving donors or surrogates other than the intended parents (whether the intended parents are married or unmarried).
Divorce
The MPA’s rewrite of Chapter 209C will have no impact on divorce law per se. Divorce law is governed by Chapter 208. However, the MPA may be helpful in many divorces in the sense that it may clarify the allocation of parentage in cases of assisted reproduction before the divorce and so narrow the issues in the divorce proceeding.
Unmarried parents
The MPA will not alter laws applicable to the common case of unmarried people conceiving through sexual intercourse. The MPA does make changes in every section of Chapter 209C which was originally written to cover this case. However, most of these changes simply replace gendered language with gender-neutral language.
De facto parents
New Section 25 of Chapter 209C added by the MPA pertains to “de facto parentage.” De facto parentage refers to situations in which a person who is not a legal parent functions in a sustained way as a parent, assuming substantial responsibility for the care of a child.
Court cases and statutes in other states have recognized that granting legal parental status to a de facto parent may be in the best interest of the child. Massachusetts law does not fully recognize de facto parentage. The MPA adds clarity to de facto parentage in Massachusetts by:
- Defining legal procedures for bringing de facto parentage claims
- Defining standards for awarding the status of de facto parent (including that the other parents consented to the de facto parent’s relationship with the child, or alternatively, that they did not meaningfully engage with the child for a period of time).
- Establishing that a successful claim of de facto parentage leads to full legal parentage (under previous case law, a de facto parent had more limited parental rights)
- Clarifying that granting a person the status of de facto parent does not affect the legal parentage of other parents — a child might have more than two parents, including the de facto parent. In this respect, de facto parentage differs from adoption, in which parental rights of the original parent are extinguished.
- Establishing that “Custody, parenting time, visitation and child support shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines” — in other words establishes that the de facto parent’s rights should be given the same consideration as the original parents rights.
- Providing explicit safeguards for domestic violence survivors and people serving in the military
These provisions have evolved materially through the committee process. House 4750, the version reported out of the Joint Committee on the Judiciary and recently amended and approved on the floor of the House, differs as to some important details from the originally filed version of the bill. Notably, House 4750 (a) establishes a rebuttable presumption against the possibility of de facto parentage by legal guardians; (b) imposes more explicit requirements for consent by the original parents to the de facto parentage relationship; (c) imposes specific time requirements for the duration of the de facto parenting relationship.
The original and the latest versions both include a new Section 26 for Chapter 209C affirming the best interest of the child as the central criterion for resolving parentage when disputed.
Assisted reproduction
A person or couple seeking to have a child other than through sexual intercourse may conceive and carry a child with assistance in several possible ways. New Section 27 of Chapter 209C added by the MPA pertains to donor assisted reproduction without surrogacy. New Sections 28 through 28P pertain to assisted reproduction with surrogacy.
The MPA refers to the person or couple seeking to have a child as an “intended parent.” An “Intended parent” is defined as:
a person, whether married or unmarried, who manifests an intent to be legally bound as a parent of a child resulting from assisted reproduction.
An Act to Ensure Legal Parentage Equality, Senate 947, Section 8
The MPA refers to a person — other than an intended parent — who provides their embryo or gamete (egg or sperm) for assisted reproduction as a “donor.” The person — other than an intended parent — who carries the gestating child is termed a “surrogate.” The surrogate could be a “genetic surrogate” if providing their own gamete or a “gestational surrogate” if carrying a child conceived from gametes from others (who might or might not be intended parents).
The MPA speaks to the unique issues raised in assisted reproduction:
- Allows intended parents through assisted reproduction without surrogacy to voluntarily acknowledge parenthood without the need for a court proceeding.
- Assures that the intended parents will be legally able to exercise their role as parents of the new child.
- Assures that people engaging in assisted reproduction as intended parents, donors, or surrogates give consent and that surrogates are fully-informed and well-advised both medically and legally.
- Assures that a surrogate retains authority to make their own health and welfare decisions, including a decision to terminate or not terminate a pregnancy.
- Handles contingencies, including deaths, laboratory errors, relationship changes, and changes of heart whether by an intended parent, a donor, or a surrogate, and whether before or after delivery of the child.
- Attends to legal process issues in cases of disputed parentage
- How and in what form a binding surrogacy agreement can be executed — in writing, notarized, etc.
- What are the appropriate elements of a surrogacy agreement
- Procedurally how and in which courts disputes will be resolved
- Creating appropriate birth records reflecting the intended parents
Summary
The Massachusetts Parentage Act adds necessary clarity to fundamental parentage laws speaking to the security of children. I am grateful to Senator Cyr and Representative Peake for bringing it forward and to the Joint Committee on the Judiciary for refining it. I am also grateful to Senator Bruce Tarr and Representative Hannah Kane who have also contributed heavily to the advancement of the bill. I very much hope that we can put it on the Governor’s desk in this session.
Thoughtful as usual. I agree. Hal
Very thoughtful, thorough and certainly timely and important to children. One thought: Hardly necessary to the intent of this legislation– but in the section on “Sharing Parentage in Complex Situations,” does the long established legal process of adoption merit a mention? I’d guess it is one of the earliest enlargements of the definition of parentage and the fact that adoption is now so broadly accepted might help people see the worthiness of this step to enlarge the definition of ‘parentage’ even further.
Thank you. Good suggestion. I have added a sentence above distinguishing de facto parentage from adoption. The key difference is that in adoption the rights of a parent are surrendered or extinguished.
This is wonderful. Avoids the legal process and costs for adoption. Clarifies and emphasizes the importance of the binding and legal surrogacy agreement and the legal process of adjudicating legal parenthood. I am so proud of Rep John Moran (9th Suffolk). His speech in the House was spectacular and the roll call vote was unanimous without abstensions.
Perhaps I’ve been watching too much Law & Order: SVU and IANAL, but do the provisions on “consent” address the issue of a rapist acquiring and enforcing parental rights (such as visitation) on the child of that rape without the mother’s consent? Or is this just not an issue except on TV and never really happens?
Recognizing and protecting the rights of children and parents, especially in non-traditional families is very important and I support this, at least in so far as I understand it.
This concern is explicitly addressed in the bill — it is a priority to avoid that an abuser could enforce rights.
Will, I have deep concerns about commercial surrogacy and its potential to exploit and coerce women — particularly poor women, women of color, and immigrant women — and your explanation here does little to assuage my fears.
Not only gestational surrogates, but so-called “genetic surrogates” — whom most people would understand as “mothers,” but let that pass — can, under this bill, legally enter into agreements to be paid for conceiving, delivering, and relinquishing a child.
Can you explain how this portion of the bill is protecting children? It is certainly easy to see how it would serve the interests of the adults commissioning the gestational surrogate. But it reads to me like baby trafficking.
Under this bill, a person, even one with no genetic relationship to the child, could arrange to legally acquire a baby, evading the normal background checks that are required for adoption. (The bill mentions a single “mental health evaluation,” which most abusers could probably pass: this is obviously far below the standards for adoption.) What safeguards are in place with this bill to prevent this?
The bill protects the child by preventing disputes as to their parentage in a surrogacy arrangement, specifically defining the rigorous standards that a surrogacy agreement must meet in order to secure the parentage of intended parents.
When, for whatever reason, a parent cannot carry a child, a surrogate is giving them a wonderful gift. Compensation to the surrogate is appropriate and makes their gift no less wonderful. This bill contemplates a thoughtful and respectful planned relationship between intended parents and a surrogate. The bill includes rigorous safeguards to protect a surrogate from exploitation.
Under the bill which was unanimously approved by the Massachusetts House of Representatives, a surrogacy agreement must be documented in advance of pregnancy.
Surrogates must be experienced adults and independently counseled:
Surrogates retain control of their body in a surrogacy agreement.
These and other safeguards are contained in new Sections 28 through 28P of Chapter 209C as added by the bill.
Respectfully, something is either a gift or a sale, and when money changes hands, it is not less of a sale just because the recipient is profoundly happy about it.
While I agree that prolonged legal battles over parentage are not in a child’s best interest, it’s not just me who thinks that the commodification of infants and pregnancy is ethically troubling, it’s also the UN special rapporteur on child exploitation.
I am happy to see the provision that the surrogate must have independent counsel. I am less happy about section 28K (c):
“A person may not terminate a validated genetic surrogacy agreement if a gamete or embryo transfer or implantation has resulted in a pregnancy.” Given previous litigation, I wonder whether this could actually hold up in the courts.
Regarding the point about the requirement that the surrogate must previously have given birth: I don’t know how well you remember the details of the famous Baby M case of the 1980s, but Mary Beth Whitehead had two children prior to entering into her agreement with William and Elizabeth Stern (I am not sure, but I think NJ even had a similar requirement at the time.) Furthermore, a woman who already has children to take care of is arguably more likely to be more motivated by economic straits to enter into such an agreement than a childless one.
FWIW, the Baby M case predated the Uniform Law Draft by several decades. Had New Jersey had this framework in place the precedent there might be different.
I think we have to live in to this. My sense of how it will work is much more positive than yours. I do think it would be difficult to meet all the standards of this act in an international surrogacy context, but I’m going to give that some more thought as to whether any additional safeguard could be helpful.
This is a further reply after the additional thought I promised in my previous reply. Over the past couple of weeks, I have had a number of conversations on the particular issue of whether we should geographically limit the protection for surrogacy arrangements under the proposed legislation. I thank all who have engaged with me.
I agree that the welfare and dignity of the surrogate mother are central concerns. I feel that the proposed legislation does center these concerns. People with concerns for the surrogate should be eager to put in place the safeguards outlined above.
The risk of exploitation is much greater without this legislation. If we put this legislation in place, couples who are unable to carry a child and need a surrogate will absolutely want to do so within the contractual framework created this legislation. Compliance with the framework — and all the protections it gives to the surrogate — will establish a legal parent-child relationship that otherwise may very difficult to establish. If we do not put this legislation in place, these couples will go to states or countries where there may be weaker protections for both the parent-child relationship and the surrogate.
That much is crystal clear and I do strongly support the legislation.
I did give extended thought to the question of whether we should limit the new legislation to United States surrogates. I do feel that the ability to verify the protections of the rights of the surrogate may be less if the surrogate is in another country. However, I decided I would not push for a limitation. Compliance with the legislation will be very valuable to parents and compliance with the legal and medical requirements of the legislation will be vastly easier to prove in court if the parents engage a surrogate in a place where legal and medical systems are strong, whether in Massachusetts or elsewhere. It is worth noting that use of a surrogate in another country creates the potential for citizenship ambiguity that might be very expensive to resolve; this will be the least attractive option for most parents. So, we can have considerable confidence that the protections for the surrogate will be meaningfully implemented in most cases of surrogacy under the legislation.
Filling the current legal vacuum as to surrogacy in Massachusetts with this thoughtful legislation may or may not increase the number of couples who seek surrogacy, but it seems very likely to reduce the number of couples who engage with surrogates in ways that do not protect fully protect the rights of the surrogate.
Important topic. Glad the legislature is looking at update to the laws.
A surrogate cannot reasonably be expected fathom the “consent” they give and what they may feel during gestation and parturition. A surrogate who becomes alive to motherhood MUST have final say and ability to change her mind. The lesser evil is to disappoint the incompetent couple.
Please see my reply above.
Note especially that eligible surrogates must already have had a child. The surrogate pregnancy cannot be their first.
Can this be done in a way that doesn’t attack mothers and womanhood? It sounds like a lot of knots. Why must the many suffer for the few?
There are important protections here, but you can’t legislate reality. (One cannot.)
I am not a commercial social media user and I may not be the only one. Since the Senator is a local Democratic Party Leader and the historically epic crisis in the White House and the absence of factual data about the condition of the President is directly affect your constituents would you please (at a minimum) open a topic on in this forum for us to know what’s happening?
Thursday night’s revelation of the degree of President’s decline, disintegration and irrefutable unfitness for his office is to be categorized with 11/22/63, LBJ’s “I shall not seek…” speech and Nixon’s resignation. (I would add Regan’s dementia, but that like Biden’t oxygen deficiency was glossed over until the end of the former’s term and the latter’s implosion.) Add to this the double revelation of my Party’s self-delusion at best and lengthy deceptions and current gaslighting.
I hope my party soon realizes how infuriating the refrain “Remember the success of President Biden’s first four years,” is and that his one time critic and opponent was kept in a box those four years with nothing to cut her teeth on. And, if there is a silver lining here we are not talking about the Party’s heaflong rush onto socialism and the betrayal of Israel.
The theater of having a few dissenters like Rep. Moulton parrying and buying time while we sleepwalk to November’s second disaster is insufficient.
This is insanity. Just because you contort the language doesn’t change the basic fact that only biological women (XY chromosomes) can give birth. God help us.