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Adoption Notice to Sperm Donor Not Required

In a case entitled Adoption of a Minor, SJC-11797, slip op. (May 7, 2015), the Massachusetts Supreme Judicial Court decided that lawful parents (a married same-sex couple) of a child conceived through in vitro fertilization are not required to give notice to a known/biological father/sperm donor in conjunction with a joint petition for adoption.

Until same-sex marriage is recognized throughout the country, Massachusetts family law practitioners will often advise their same-sex, married clients to obtain an adoption decree from the Probate and Family Court to establish parentage of a child born as a result of artificial insemination.  But as Massachusetts residents, the parents in this particular case were not required to adopt their son in order to establish parentage: "Any child born as a result of artificial insemination with spousal consent is considered to be the child of the consenting spouse."  Id., at 6, citing Hunter v. Rose, 463 Mass. 488, 493 (2012) and G. L. c. 46, § 4B.  The Court in Adoption of Minor explains that lawful parentage, and its associated rights and responsibilities, is conferred by statute in Massachusetts on the consenting spouse of a married couple whose child is conceived by one woman of the marriage through the use of assisted reproductive technology consented to by both women.  See G. L. c. 46, § 4B.  Because the baby in this case was born to the biological mother, after an in vitro fertilization procedure to which her same-sex spouse consented, both parties are considered the boy's lawful parents under Massachusetts law.

The Court went on to explain that the Massachusetts adoption statute "does not comment on the [parental] rights and obligations, if any, of the [sperm donor] . . . inferentially he has none."  Id., at 8, citing R.R. v. M.H., 426 Mass. 501, 502, 509-510 (1998) (concluding that surrogacy agreement between plaintiff father, who had donated sperm, and defendant mother, who had agreed to act as surrogate and then changed her mind during pregnancy, was unenforceable).  Thus, with respect to a child of a married couple who is conceived by artificial insemination, Massachusetts law treats such a child the same as other marital children - there is a presumption of legitimacy.  It is also presumed that marital children have only two lawful parents: the biological mother and her spouse.

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