Tuesday, October 4, 2016

The state’s highest court just made a major ruling on parental rights

In a groundbreaking equal rights decision Tuesday, the state’s highest court extended parental rights to people in same-sex relationships who never married, and have no biological connection to a child, but can show that they acted as a parent and welcomed the child into a shared home.

The Supreme Judicial Court decision was in the case of a Burlington woman who sought parental rights of two children that were born to her former partner by artificial insemination. She had been there when the children were born – she participated in the insemination procedure for the youngest – and shared parental responsibilities with her former partner until their relationship ended, after 12 years. The children called her mommy.

In a unanimous decision, the court found that state law granting parental rights to fathers of children born out of wedlock should extend to same-sex parents, under gender neutral standards. The court found that a biological connection should not be the only claim to parentage, that a parent

“Nothing in the language of [the state law] expressly limits its applicability to parentage claims based on asserted biological ties,” Justice Barbara Lenk wrote for the court in the 22-page decision. She added, “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.”

sdafA woman can seek parental rights to the child her former same-sex partner conceived through artificial insemination, even though the two women had never married, the state’s highest court ruled Tuesday in a groundbreaking decision.

The unanimous Supreme Judicial Court ruled in the case of a couple who had been in a long-term relationship. One of them had two children through artificial insemination. The other woman sought parental rights after they broke up, even though the couple had not been married.

The court concluded that a state law that gives an unmarried biological father the right to prove he is the “presumed parent” after a couple breaks up must now be viewed in gender-neutral terms.

“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,’’ Justice Barbara Lenk wrote for the court. “Nothing in the language of [the state law] expressly limits its applicability to parentage claims based on asserted biological ties.’’

Karen Partanen, of Burlington, who had sought the declaration that she is a parent, welcomed the decision.

“My children have two parents...and they should have the right to both of us,” she said in a press briefing Tuesday.

Mary Bonauto of GLBTQ Legal Advocates & Defenders (GLAD), which assisted Parenten in the case, said the court appropriately looked at state law with a gender neutral view.

“Her children are going to know she is their parent, she is not there by the grace of someone else, she’s not someone who visits in a while,” Bonauto said. “The real beneficiaries here are the children.”

The children are now 4 and 8 years old.

The decision also addressed a gap in state laws that determine parental rights where artificial insemination is used. Current laws treat a child born through artificial insemination to a married couple as automatically the child of both parents.

The law also give same-sex couples the right to adopt a child born through artificial insemination or to legally acknowledge parentage.

But no law directly addressed the issue of whether a person formerly in a same-sex relationship who had not been married had legal standing to claim parentage to their partner’s child, the court said.

“Had Jo and Ja [the couple’s children] been born to a married couple using artificial reproductive technology, they would have had two legal parents to provide them with ‘financial and emotional support,’ ’’ Lenk wrote. “We decline to ‘read into the statute a provision’...that leaves children born to unmarried couples, using the same technology, with only one such parent.’’

The court said in a footnote that its ruling can also apply to two men who use a surrogate to bear the child who is fathered by one of the men. “Properly read as gender-neutral...these provisions may apply not only to a child born to two women, but also to a child born to two men through a surrogacy arrangement,’’ Lenk wrote.

The case involved Partanen and Julie Gallagher who were a couple for 13 years, during which Gallagher gave birth to two children conceived through artificial insemination. After the unmarried couple broke up, Partanen sought to be declared a parent, a role Gallagher argued in court papers should be hers alone.

The SJC ruled that Partanen can return to Probate and Family Court and convince a judge that she is a “presumed parent’’ by demonstrating that “the children were born to her and to Gallagher, were received jointly into their home, and were openly held out as the couple’s children’’ even though Partanen had no biological relationship to the children.

Lenk was appointed to the SJC by former Governor Deval Patrick. She was the first openly gay member of the state’s highest court. She wed her partner following the SJC’s landmark 2003 decision legalizing same-sex marriage, the Globe has reported. They have two daughters.

Milton J. Valencia can be reached at milton.valencia@globe.com. Follow him on Twitter @miltonvalencia. John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.

https://www.bostonglobe.com/metro/2016/10/04/mass-high-court-grants-parental-rights-mother-former-same-sex-partner/rrSnSEv5KTp9PyzIvUjJVN/story.html