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Determining Parental Rights in Lesbian Same-Sex Divorces in Massachusetts

In early 2004, Massachusetts became the sixth jurisdiction in the world to legalize same-sex marriage when the Supreme Judicial Court held that it was unconstitutional to limit marriage to heterosexual couples under the Massachusetts Constitution (see, Goodridge v. Dept. of Public Health, 440 Mass 309 (2003)). Frequently when the marriage is between a lesbian couple, one of the partners seeks pregnancy through artificial insemination. This results in the birth of a child during the marriage, and both partners are listed on the birth certificate. Obviously the birth-mother has parental rights, but what of the other partner? Are any extra steps, such as adoption, necessary to solidify her standing as a legal parent of the child?

According to a recent appellate case, Della Corte v. Ramirez, 81 Mass. App. Ct. 902 (2012), the answer is a resounding "no."

In Della Corte, the birth-mother argued that she had superior rights to her partner when it came to custody of her child, and that if her partner wanted equal rights she should have sought second-parent adoption during the marriage. In this case, the birth-mother became pregnant before the couple married, but her partner financed the procedure and exhibited other indicators that she consented to the pregnancy. The child was then born during the marriage, and both parties were listed on the birth certificate. Under these facts, the appellate court held that the marital partner had equal rights as the birth mother under these circumstances.

The appellate court based its ruling upon the language in Goodridge that provides that statutes should be read not to limit their application to heterosexual couples, even if the statute refers to a partner as "husband" or "wife." Specifically, the appellate court turned to the law on artificial insemination, MGL Chapter 46 ยง4B, which provides: "Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband." With Goodridge as precedent, the appellate court was free to supplant the "husband" language with "wife."

Accordingly, so long as a child is born during the marriage, both partners have equal rights of parentage, including custody, and obligations, such as support and health insurance.

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