USA – MASSACHUSETTS Law and Practice Contributed by: Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff and Mariah G. Tappan, Verrill Dana, LLP
and the father’s name will then be added to the child’s birth certificate. 1.4 Requirements for Non-Genetic Parents A non-genetic parent can obtain parental responsibil - ity through a few methods. Spouse of Birth Mother If a person is married to the birth mother, even if they are not the genetic parent, they are presumed to be the legal parent unless both the biological mother and father sign an affidavit. (M.G.L. Ch. 209C, Section 6.) This applies to heterosexual and same-sex marriages. ( Corte v Ramirez , 81 Mass. App. Ct. 906 (2012).) De Facto Parent If an individual has, with the support of the legal par - ent, become a parent to a child through their parental conduct and care, they can seek “De Facto Parent - age”. (M.G.L. Ch. 209C, Section 25.) To do so, the individual must file a complaint where they allege spe - cific facts detailing why they should be adjudicated a de facto parent. The complaint must be served on all parents, legal guardians and legal custodians of the child. In reviewing the complaint and whether to grant parentage, the court considers seven factors. Specifi - cally, the court looks at whether the individual: (i) resided with the child as a regular member of the child’s household for at least 3 years, or 40% of the child’s life (whichever is shorter); (ii) engaged in consistent caretaking of the child; (iii) undertook full and permanent responsibilities of a parent without the expectation of financial compensation; (iv) held the child out as their own; and (v) had a bonded and dependent relationship, and (vi) if the parent of each child consented to the parental relationship, as well as (vii) if adjudicating par - entage is in the child’s best interest. Assisted Reproduction Massachusetts recently enacted the “Massachusetts Parentage Act” (MPA) which details protection for par - ents if they had a child through assisted reproduc - tion, including artificial insemination, in-vitro fertilisa - tion (IVF), intrauterine insemination (IUI), gestational
surrogacy or genetic surrogacy – for both same-sex and heterosexual couples. The MPA details a protocol under the various assisted reproduction scenarios to ensure the intended parents are able to have all the same rights and responsibilities as parents who have children through more traditional means. Artificial insemination/IVF/IUI Unlike many other jurisdictions, Massachusetts is an outlier in that it grants very liberal rights to parents who grow their families through assisted reproduction. The relevant statute, the MPA, explains that a party who consented to assisted reproduction with the intention of being a parent to that child is the parent. Consent can be established by: (i) a record signed by the person giving birth and the intended parent on or before the birth of the child; or (ii) a finding by the court that, by a preponderance of the evidence, the parties had agreed, prior to the birth, to be the parents, or that the person who seeks to be the parent, together with the person giving birth, voluntarily participated in the assisted reproduction. (M.G.L. Ch. 208, Section 27.) Surrogacy For families with genetic surrogacy, wherein the sur - rogate is utilising their own genetic materials, the MPA requires a pre-conception surrogacy agreement. This surrogacy agreement must be incorporated into a judgment of parentage. When the child is born, the intended (and legal) parents then file notice with the court, and the court will issue a post-birth judgment of parentage. For families with gestational surrogacy, wherein the surrogate is carrying genetic material that is not their own, parentage can be determined pre- or post-birth. The parents, and surrogate, must enter into a surro - gacy agreement, which must be in compliance with the particularities of M.G.L. Ch. 208, Sections 28A, A person may adopt a child if there is written consent from: (i) the child to be adopted, if over 12 years old; (ii) the child’s spouse, if any; (iii) the lawful parents or sur - viving parent; or (iv) the mother, if the child was born to unmarried parents and no father (or other parent) had been adjudicated. (M.G.L. Ch. 210, Section 2.) B and C. Adoption
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