On January 1, 2025, the Massachusetts Parentage Act (“MPA”) took effect. [1] The MPA updates and adds to Mass. General Laws c. 46 on “Return and Registry of Births, Marriages, and Deaths,” and Mass. General Laws c. 209C, commonly known as the “paternity” statute. The purpose of the MPA is to focus on parentage equality and streamline the processes for securing parentage over a child. [2]
Changes in Terminology
The first sixty-four (64) sections of the MPA update the language of Mass. General Laws c. 46 and Mass. General Laws c. 209C. These amendments ensure that the law reflects the full diversity of families. One of the most notable changes is the title of c. 209C from “Children Born Out of Wedlock,” to “Nonmarital Children and Parentage of Children.” Any references to “paternity” have been replaced with the word “parentage” to best reflect a gender-neutral perspective. Any reference to “man” or “woman” is replaced by the word “persons.” Moreover, to ensure that the laws surrounding parentage are carried out in a nondiscriminatory manner, the updated Mass. General Laws c. 209C §1, states, “A child shall have the same rights and protections under laws to parentage without regard to the marital status, gender, gender identity, or sexual orientation of their parents or the circumstances of the child’s birth including whether the child is born as a result of assisted reproduction or surrogacy.”
Updates to Who May Sign a Voluntary Acknowledgement of Parentage
A Voluntary Acknowledgement of Parentage (“VAP”) is a civil form made available by the Department of Public Health and is provided in hospitals upon one’s giving birth. It is equivalent to a court decree for parentage and receives full faith and credit across states. The MPA expands access to VAP forms, making Massachusetts the 12th state in the country to formalize this broadened availability. Previously, this was only available to genetic mothers and fathers, but now the form is available for parents engaging in assisted reproduction and for all presumed parents. [3]
Codifying de Facto Parentage
The doctrine of “de facto parentage” treats a person as a parent when they have developed a parental relationship with a child over time. Prior to the MPA, Massachusetts had a de facto parent doctrine, however, that doctrine only provided standing to seek visitation. The MPA has implemented existing de facto parent status and expanded it within Mass. General Laws c. 209C §25-26, by treating a person as a legal parent after being adjudicated as a de facto parent. See requirements, below. These additions have the effect of securing parentage as an alternative to adoption and a permanent option, as opposed to guardianship. That said, when granted de facto parent status, a petitioner may attain legal rights and responsibilities over the child, such as: (1) potential for shared legal and/or physical custody, (2) access to parenting time, (3) protection of removal of a child out of state, (4) access to educational and medical records, (5) payment of/access to child support, (6) the child may have access to SSI and SSDI benefits of a the de facto parent, (7) the parent may have access to SSI of the child, (8) the child may inherit from the de facto parent, and (9) the parent may claim certain tax benefits. [4]
The MPA places several requirements on both the public and the courts when filing a claim for de facto parentage. First, the de facto parent and child must be alive, and the child must be under eighteen years of age. The de facto parent must file a complaint alleging specific facts to support each of the seven elements required to support de facto parentage. See elements below. Within 60 days, and prior to an adjudication of the merits, Courts must decide whether the petitioner has standing for securing legal parentage. The Court will then adjudicate a petitioner with standing to be a legal parent if the parent satisfies seven elements codified in Mass. General Laws c. 209C §25.[5]
If a petitioner satisfies each element by clear and convincing evidence, and if there are not already two existing legal parents of a child, that person may attain de facto parent status. However, if there are already two existing legal parents, then additions to Mass. General Laws c. 209C §26 address competing claims to parentage. Courts will assess the competing claims to parentage using a best-interest standard, considering factors within §26(a), including, but not limited to, the age of the child, the nature of the relationship between the child and parent, and the harm to the child that may occur if de facto parentage is not recognized. While the Court may determine who may be recognized as a legal parent, §26(c) expressly allows a child to have more than two parents if in the child’s best interests.
Parentage through Assisted Reproduction
The MPA has established new laws surrounding assisted reproduction within Mass. General Laws c. 209C §27. The MPA has finally codified the ruling that sperm and egg donors are not legal parents and are not entitled to notice regarding parentage actions relative to the conception of a child through their donation. [6] As a result, protections to competing claims from donors are now available by statute to those not previously protected, including same-sex parents, unmarried parents, single parents by choice who use assisted reproduction, and multi-parent families (three parents or more).
Mass. General Laws c. 209C §1 has been amended by defining an “intended parent.” An intended parent is a person (whether married or unmarried) who manifests an intent to be legally bound as a parent to a child born through assisted reproduction. For example, a non-biological parent in a same-sex relationship who consents to assisted reproduction would be considered an intended parent. Currently, a person may establish legal parentage by showing consent to the assisted reproduction by written agreement or through a court’s finding by a preponderance of the evidence that there was either evidence of an oral agreement or a signing of other forms with the donor. While co-parent adoption is still available, there is now a time-efficient and less costly means of achieving parentage through receiving a parentage judgment. A court can issue a parentage judgment either before or after the child is born via assisted reproduction, provided that there is consent from both parties. This streamlined process allows parents engaging in assisted reproduction to seek a declaration of parentage at the outset of a child’s birth, which results in the rights of the intended parent(s) vesting immediately upon birth. At that time, the parent(s) are then designated on the child’s birth certificate and maintain the ability to make medical decisions on behalf of the child as well as obtain health insurance for the child.
Parentage through Surrogacy
The MPA has added §28(A)- §28(P) to Mass. General Laws c. 209C. These new sections ensure consistency regarding when and how the intended parents of a child born through the surrogacy process can maintain their parental rights. Prior to the MPA’s enactment, parentage actions were subject to equity jurisdiction of the Court under Mass. General Laws c. 216, resulting inconsistencies in determining parentage. It is now established law that parentage can be documented at the outset of the surrogacy process and then adjudicated by the courts as expected and desired by the parties prior to a child’s birth.
The MPA defines two different types of surrogacies: gestational and genetic.[7] For each type of surrogacy, surrogacy agreements are now expressly permitted with different requirements relative to each type of surrogacy. For instance, when parties agree to pursue gestational surrogacy, there are certain requirements for an agreement to be valid and enforceable under Mass. General Laws c. 209C §28(A-C) such as: (1) Parties must be no less than 21 years old, (2) a mental health consultation is required, (3) the surrogate must have given birth prior, (4) the surrogacy agreement must be executed prior to conception, (5) the agreement cannot infringe on surrogate’s right to make her own health decisions and (6) the intended parents and surrogates must be represented by counsel. Court approval prior to conception is required for genetic surrogacy agreements to be presumptively enforceable and meet the requirements of Mass. General Laws c. 209C §28(A-C).
After an agreement is finalized among the parties, an action may commence to secure a judgment of parentage prior to or after a child’s birth. The Court is permitted a sixty (60) day timeframe to issue a parentage judgement after commencement of the proceeding, which is intended to promote efficiency, greater certainty, and comfort for all parties involved.
Conclusion
The MPA has significant ramifications on establishing parentage, by offering robust legal protections for all families, including those formed through assisted reproduction and those within the LGBTQ+ community. These revisions offer crucial direction to legal practitioners in navigating parents toward securing their parental rights. Consult counsel for further guidance and support regarding these changes.
Victoria A. Russo is a Family Law attorney at the Boston-based law firm Conn Kavanaugh Rosenthal Peisch & Ford, LLP.
She can be reached at vrusso@connkavanaugh.com
[1] MA, St. 2024, c. 166, § 65
[2] There are various paths that one can take to attain legal parentage of a child. Those paths include the following: (1) Giving birth (except for people acting as surrogates); (2) Adoption (pursuant to chapter 210); (3) Acknowledgment (by signing a Voluntary Acknowledgment of Parentage along with the birth parent); (4) Adjudication (an order from a court); (5) Presumption (including the marital presumption; i.e. being married to the person who gives birth and non-marital presumption; i.e. holding out to the public that you are the parent of the child); (6) Genetic connection (except for sperm or egg donors); (7) De facto parentage; (8) Intended parentage through assisted reproduction; and (9) Intended parentage through a surrogacy agreement
[3] Mass. General Laws c. 209C § 6
[4] De facto parentage is different from guardianship, in which case a guardian must get permission before traveling with child out of state and has to reapply for the child’s health insurance every year. Moreover, a parent, no matter what, may seek to remove guardianship at any time.
[5] Under §25(i) following elements must be satisfied by clear and convincing evidence in order to be adjudicated as a legal parent: (1) The plaintiff resided with the child as a regular member of the child’s household for not less than 3 years or 40% of the child’s life, whichever is shorter; but not less than 2 years; and the court may accept a shorter period in extraordinary circumstances for good cause shown; (2) the plaintiff engaged in consistent caregiving of the child, including, but not limited to shaping the child’s daily routine, addressing the child’s developmental needs and providing for the child’s education and medical care, individually or cooperatively with another parent; (3) the plaintiff undertook full and permanent responsibilities of a parent of the child without expectation or payment of financial compensation; (4) the plaintiff held out the child as the plaintiff’s child; (5) the plaintiff established a bonded and dependent relationship with the child that is parental in nature; (6) each parent of the child consented to the bonded and dependent relationship; provided, however, consent shall include that each parent, over a period of not less than 6 months (the statute also includes an “implied consent provision” where if a parent has not meaningfully engaged with the child through direct contact decision making or financial support for a period of two years then this element is satisfied); (7) adjudicating the plaintiff to be the child’s parent is in the best interests of the child. In making this determination, the court shall consider evidence of past or present abuse by the plaintiff toward a parent or the child as a factor contrary to the best interest of the child.
[6] In In Re Adoption of a Minor, the Supreme Judicial Court held that both known and unknown donors are not entitled to notice of an adoption proceeding nor are they considered legal parents of a child. In re Adoption of a Minor, 471 Mass. 373, 29 N.E.3d 830 (2015). The Court had to interpret the language of Mass. Gen. Laws Ann. ch. 210, § 2, and whether the following meant the consenting parents of a child born through in vitro fertilization (IVF) had to inform the sperm donor of the notice of petition for adoption. The Court ultimately based on the plain language of the statute and precedent that notice was not required and donor’s are not considered legal parents. However, despite the court’s grappling over statutes relative to parentage, this ruling has not been set forth by statute until recently with the codification of the MPA.
[7] Section 10 of the MPA has added definitions to Mass. Gen. Laws c 209C §1A. A “Gestational Surrogate” is a person who is not an intended parent and agrees to become pregnant through assisted reproduction using gametes that are not their own under a gestational surrogacy agreement. A “Genetic surrogate”, a person who is not an intended parent and agrees to become pregnant through assisted reproduction using their own gamete under a genetic surrogacy agreement as provided in this chapter.
Share with your network:
