Amanda Mulhall
15 Feb

While marriage equality in Massachusetts has been settled law since 2003 with the holding in Goodridge v. Department of Public Health¹, and twelve years later at the Federal level with the Supreme Court’s ruling in Obergefell v. Hodges², the legal challenges for LGBTQ+ couples who desire to create a family do not end after saying “I do.” One such legal challenge facing same-sex married couples is in Massachusetts law pertaining to parents’ rights. 

In Massachusetts, a child born to a married couple during a marriage is presumed to be a child of the marriage. For married couples who are unable to produce children biologically, this presumption does not apply.  Same-sex couples are faced with an additional legal process to confirm that the non-biological parent – regardless of whether both parents are named on the child’s birth certificate – has parental rights to their own child. This confirmatory adoption process is required because birth certificates may not be honored in different states and countries, thus undermining the parental rights of the non-biological parent. Some examples include challenges to parentage or denial of medical treatment of the non-biological parent’s child. 

Because there is no existing statute to provide guidance or protection on this issue, Massachusetts requires that the non-biological parent seek an Adoption Decree in order to enforce parental rights. The process of submitting an Adoption Petition to obtain the Decree includes:

  • A Court hearing for both petitioners, in which the parents will likely have to bring the infant, (though if the petitioners know to ask, the infant’s presence may be waived);
  • The Massachusetts Department of Children and Families can conduct a home study investigation and a Missing Child investigation for the petitioners’ own child (this too might be waived by the Court upon request);
  • A six-month waiting period deemed a “residency requirement,” before the non-biological parent can file their petition (this is also possible to have waived);
  • criminal background checks for the parent[s]; and
  • Disclosing to the Court very private medical information and other personal information to establish parentage, including detailing conception, insemination, pregnancy, medical care, birth, and care of child since birth.

Massachusetts is the only state in New England that has yet to pass uniform statutory protections and guidelines to address parentage in these circumstances. There is, however, current proposed legislation up for consideration by the Massachusetts House of Representatives and Senate. House bill, H 1713, and Senate bill, S 947, An Act to Ensure Legal Parentage Equality (the Massachusetts Parentage Act or MPA) is a proposed law intended to ensure that all families have equal access to Massachusetts parentage, as well as to protect survivors of domestic violence and their children. 

You can learn more about The Massachusetts Parentage Act here and here. We would like to give a big “Thank You” to our colleague and friend of the firm, Catherine Cappelli, for bringing this issue to our attention. Cath is a Family Formation Attorney located in Newton, Massachusetts, and an emphatic supporter of the rights of single parents, opposite-sex couples, and the LGBTQ+ community in creating the loving families of their choosing.


¹ Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).

² Obergefell v. Hodges, 576 U.S. 644 (2015).