Last month, the Commonwealth's highest appellate court considered how legal parenthood is defined in the context of children born to a same-sex couple as a result of artificial insemination. The case, Partanen v. Gallagher, is currently under advisement by the Supreme Judicial Court. The Court's opinion could result in new parameters for what it means to be a parent in Massachusetts. At issue is the scope of the legal rights that an unmarried woman, who was previously in a relationship with the child's biological mother when the child was conceived using artificial insemination, enjoys after the relationship ends.
Currently under Massachusetts law, a child born to a married woman and man as a result of artificial insemination from a sperm donor is considered the legal child of the couple. The appealing party in the Partanen case was in a long-term relationship with her same-sex partner and consented to her partner's artificial insemination using a sperm donor. The parties were not married, and when their relationship broke down--after the birth of two children by artificial insemination--the nonbiological mother, Partanen, filed a complaint in the Probate and Family Court asserting her rights as a legal parent. The Probate and Family Court threw out her complaint on the basis that the controlling law, G.L. c. 46, § 4B, did not recognize her claim of parentage. Partanen argued on appeal to the Supreme Judicial Court that her ex-partner's genetic link to their children should not entitle her to the status of sole legal parent, but that both mothers should be recognized as joint legal parents to the two children born during the parties' relationship. Gallagher, the biological mother, argued on appeal that because she and Partanen were never married or in a civil union, and because Partanen never adopted the two children, that the law does not recognize Partanen as a legal parent. Gallagher also argued that the law of Florida, where the parties resided at the time of the artificial insemination, should control.
The Supreme Judicial Court's opinion, expected this summer, may change the landscape of legal parentage in Massachusetts. The decision will likely impact both heterosexual and homosexual couples who conceive children outside of marriage with the aid of artificial insemination.