Time to support the Passage of the Massachusetts Parentage Act

When my daughter was born in 1984, I was not yet a lawyer and, honestly, I knew nothing about parentage law. I just wanted to have a baby. Lesbians were not able to purchase donor sperm directly; doctors would not assist a lesbian to access donor sperm; health insurers would not pay for fertility treatment. My daughter's father (who is gay and with whom I had a written agreement) and I were on the birth certificate but there was no way for my daughter's other mother to establish legal parentage.

Nine years later (and ten years before marriage became legal), I was a lawyer and lucky enough to be involved with the first case that made it possible for unmarried lesbian couples to jointly adopt their children. Subsequently, in the late 1990s, adoptions by more than two parents became possible. My daughter now has three legal parents, an adoption decree to prove it, and a Massachusetts birth certificate that is (finally) accurate.

All this was historic and Massachusetts was one of the first two states to establish the right of same-sex parents to adopt (Vermont being the other). It was only thirty years ago that non-biological LGBTQ parents were able to establish legal relationships with their children. And there are still a few states where unmarried people cannot adopt.

Before this monumental change in the law, children's relationships with their non-biological parents were more often than not severed when the adult relationship ended. I'd like to tell you that this ended when adoption became possible. It did not. Over the past thirty years, many, many non-biological parents have been deprived of ongoing relationships with their children because they could not or did not adopt. This is a trauma a child may never recover from. And I'd like to tell you that since same-sex marriage became legal, this has not been a problem. I cannot. Not everyone gets married and not everyone goes through the adoption process. Over and over again, LGBTQ parents either refuse or fail to protect their parent/child relationships and when there's a break-up, the non-legal parents and their children lose.

But even if you are married and both of you are on the child's birth certificate, this is not enough. In the current extremely hostile environment where rampant homophobia and transphobia are constant threats, it is ESSENTIAL that we protect our relationships with our children or risk losing them. Many jurisdictions (not Massachusetts) refuse to recognize the "marital presumption." That is the presumption that the spouse of a married person who gives birth is also a legal parent. These jurisdictions have refused to recognize that the marital presumption applies to same-sex couples, and numerous non-biological parents have been deprived of their relationships with their children as a result. Although this situation usually arises in the context of a divorce, it could come up in other ways. For example, if you are traveling through a hostile state and have a car accident and the biological parent is in a coma and/or children's protective services becomes involved with your family and refuses to recognize the non-biological parent.

A birth certificate, while an important public document, is not definitive proof of parentage. An adoption decree, on the other hand, is entitled to full faith and credit — this means it must be respected in all jurisdictions. Until all jurisdictions apply the marital presumption to LGBTQ married couples, you must adopt in order to insure that your parentage will be respected in other states. Unmarried Massachusetts couples are now able to sign a Voluntary Acknowledgement of Parentage when a child is born and establish legal parentage. This is a very recent development and is only possible in a handful of states, but still an important legal right. Unmarried couples are still encouraged to adopt. Families that include one or more transgender parents are encouraged to adopt, particularly where a parent does not have a biological relationship with the child. Families where there are more than two parents must adopt in order for all the adults to have legal parentage.

I've been representing LGBTQ families for thirty years and I have seen firsthand the damage that can be done when an individual does not have a legal connection to a child. It is devastating for the child and devastating for the parent. The law is always evolving (sometimes for the better and sometimes not) and it is important to protect yourselves. Although Massachusetts law provides our community with many protections, there is still a need for reform. Passage of the Massachusetts Parentage Act which will clarify who is a parent and how parentage is established, is an essential step towards progress. Call your legislators and encourage them to support the MPA!

And, as I've said so many times, do your children a favor — adopt!