To the families and advocates who have been pushing for years to get Massachusetts’ laws on parentage and paternity changed, the final hours of the legislative session were filled with anxiety. Then the news came in the wee hours of Thursday morning: their bill, filed for the fourth time, was approved and was going up to the governor.
“It was a long time coming,” said Kathy DeLisle, a family law attorney who focuses on assisted reproductive technologies.
After Massachusetts was the first state to legalize same-sex marriage in 2004, James Nichols-Worley — his parents told him — was the first person in Massachusetts to have both of his dads on his birth certificate from the moment he was born.
“It was a big deal in 2004 ... but the thing is, is that — oh my God, I’m turning 20 in a few months,” he told GBH News. “So, 20 years later, the same laws that made my case historic, that were such a big deal — not just for my family, but for so many families like mine — we still have those same laws on the books. We haven’t updated them.”
Massachusetts is the last state in New England to update its parentage laws, which haven’t been touched in decades, to confirm rights for non-biological parents. That left families to navigate a patchwork system, and potentially costly avenues like adoption, to shore up their parental rights. In Nichols-Worley’s case, his dads got their names on his birth certificate because his father is an attorney — and one who specializes in this area of law.
But, this session, lawmakers in both chambers unanimously passed a sweeping bill to update parentage laws and account for a slew of different ways that people form their families, including surrogacy, sperm donors, and becoming a “de facto” parent of a child.
Polly Crozier with the GLBTQ Legal Advocates & Defenders — or GLAD, a civil rights advocacy organization that has been lobbying for the bill — said she’d hoped this was going to be the year the Legislature pushed it through. Attacks in other states on LGBTQ+ rights and access to fertility services like in vitro fertilization, she said, show why it’s needed.
“To me, there’s never been a more important time to move legislation like this forward. I was really, really happy,” Crozier told GBH News.
The House approved the Parentage Act in June, and the Senate approved its version on Tuesday. Lawmakers hashed out technical differences in the waning hours of its legislative session. Gov. Maura Healey still needs to sign it, but she has publicly backed the bill.
For the last few decades, Massachusetts families have fallen under a patchwork of case law in the courts.
Massachusetts law, for instance, doesn’t account for surrogacy at all. It was Supreme Judicial Court justices who decided that the intended parents, rather than the surrogate’s name, should be on the birth certificate back in 2001. That’s the precedent that Nicols-Worley’s fathers used to get their names on his birth certificate, and it’s what families who have kids through surrogacy still rely on today in Massachusetts.
“It’s just nutty. And in every other state that has updated their parentage laws, it’s very clear that ‘intent to parent’ is parenting,” DeLisle said. “And so it doesn’t matter if there’s a donor, it doesn’t matter if the surrogate’s married, it doesn’t matter if you’re married or single or in a committed relationship.”
“This law is sorely, sorely overdue,” added state Sen. Julian Cyr, the bill’s lead sponsor in the Senate, in an interview with GBH News Tuesday before the Senate’s unanimous approval.
“My wife and I may be sort of done with this process, but the idea that other people like me wouldn't have to go through that is super exciting.”Sarah McGuire, who adopted her two kids
A married same-sex couple, also, doesn’t currently have an avenue to both hold parentage from a child’s birth. If one woman is genetically related to and carries the baby, it’s their marriage that confers the other’s right to parent.
That’s why Sarah McGuire adopted her own two children that her wife carried.
“I just think about the process we went through: the money spent, the angst of finding a lawyer who had experience in navigating the court system,” McGuire said. “That would have been just so much easier and less stressful. And it also, like, fundamentally would acknowledge my rights as a parent, and I would have felt more respected by my state as a parent of my kids.”
“My wife and I may be sort of done with this process, but the idea that other people like me wouldn’t have to go through that is super exciting,” she added.
Due to gaps in the case law, they weren’t able to sign a document to voluntarily acknowledge their parentage, an avenue that’s available to so many other couples and, under federal law, guarantees parental rights in every state. But under the new legislation, that loophole would be closed, and couples like the McGuires could sign a piece of paper at the hospital instead of spending thousands of dollars and months of their lives on court proceedings.
Advocates and families emphasized it isn’t just a question of money and dignity. There are risks and complications when one member of the couple isn’t legally considered the parent. Often it comes up if the pair splits up and one parent doesn’t have the same right to custody. But there are also hang-ups with getting health care for a dependent, or making medical decisions for a minor if one parent can’t prove they’re legally a parent, or accessing social security benefits.
“It really puts LGBTQ people and their families in potential legal jeopardy, particularly with an alarming number of states across this country who are trying to interfere with LGBTQ families and LGBTQ people,” Cyr said.
Lawmakers and advocates hope this change will mean that, going forward, parents won’t need the expertise of an attorney in their family or a couple thousand dollars to spend on an adoption to protect their parental rights.
“We’re a state that is really inclusive, really wonderful,” Crozier said. “And I think we want to live up to this promise.”
