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to Section One | to Arts & Entertainment
posted Friday, April 8, 2016 - Volume 44 Issue 15
Rights of nonbiological parents at issue in Massachusetts case
Section One
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Rights of nonbiological parents at issue in Massachusetts case

by Mike Andrew - SGN Staff Writer

Oral arguments began April 5 in a Massachusetts Supreme Judicial Court case involving the rights of nonbiological parents when a couple with children separates.

The case of Partanen v. Gallagher involves an unmarried Lesbian couple with two children who have now separated. Gay and Lesbian Advocates and Defenders (GLAD) is representing one member of the former couple in this appeal to the Massachusetts Supreme Judicial Court.

Julie Gallagher and Karen Partanen were a couple for nearly 13 years before they separated. They met in Massachusetts and later moved to Florida. While living there, they bought a home and decided to have children together. Partanen was unable to become pregnant, and the couple decided that Gallagher would be the one to give birth.

With Partanen's consent and full involvement, Gallagher conceived two children through assisted reproduction, and they parented them together. The couple later moved back to Massachusetts and separated. Their two children are now 4 and 7 years old.

Upon their separation, Partanen filed two petitions: the first 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; and the second to be declared a full, legal parent under existing Massachusetts laws, which would acknowledge her role and her responsibilities to the children.

Gallagher has opposed both petitions. The petition to establish full legal parentage was dismissed by a trial court in March 2015 and is the focus of the appeal.

'These children have had a Mommy, Karen, and a Mama, Julie, for their whole lives and have deep bonds with each,' said GLAD attorney Mary L. Bonauto, who argued on behalf of Partanen before the Massachusetts high court.

'Fortunately, the parentage laws provide a backstop so that children born to unmarried adults can obtain a determination of parentage and secure appropriate support, custody, and visitation ... These child-centered laws should protect children born from assisted reproduction, whether their parents are a same-sex or different-sex couple.'

'I grew up in a large family, and that sense of family and permanency is what I want for my children,' Partanen echoed.

According to GLAD, Massachusetts law says that when unmarried parents have and raise a child together in their home and hold out the child as their child to the community, then the nonbiological parent is presumed to be a legal parent.

Partanen and Gallagher held themselves out as the children's parents to the children, each other, the community, and third parties, and on official forms, GLAD says, and that makes Partanen the children's legal parent even though she is not their birth mother.

Gallagher claims that the presumption of legal parentage evaporates without proof of a biological connection, however.

In addition, Massachusetts policies favor immediate legal parentage for children born to married couples who use assisted reproduction. GLAD says that policy must apply here to ensure equal treatment of all children without regard to their parents' marital status, as state law and constitutional commands require.

In Washington state, the state Supreme Court established in 2005 that the nonbiological parent in a separating same-sex couple could be ruled a 'de facto' parent with visitation and other rights, if that was consistent with the 'best interests' of the children.

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