October 04, 2016 - 9:32 AM
BOSTON - The same court that paved the way for same-sex marriage in the United States ruled Tuesday that an unmarried gay woman whose former girlfriend gave birth to two children through artificial insemination can seek the same parental rights as their biological mother.
The Supreme Judicial Court issued its decision Tuesday in a complicated case about the parental rights of a once-partnered, but unmarried, gay couple.
Julie Gallagher gave birth to the children, and her former partner, Karen Partanen, has helped raise them. They are now 4 and 8.
After the couple split in 2013, Partanen wanted to be declared a full legal parent.
A family court judge dismissed Partanen's request, finding that she didn't meet the requirements under state law because she and Gallagher were not married when the children were born, and Partanen is not a biological parent.
In overturning that ruling, the SJC found that a gay person may establish themselves as a child's presumptive parent under state law, even without a biological relationship with the child.
"The plain language of the provisions, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children," Justice Barbara Lenk wrote for the court in the unanimous decision.
The SJC made Massachusetts the first state in the nation to legalize same-sex marriage through a landmark decision in 2003. Partanen was represented by GLBTQ Legal Advocates & Defenders, the same Boston-based legal group that brought the gay marriage case.
Mary Bonauto, the group's civil rights project director, called the ruling "a major victory for contemporary families."
"It is especially a victory for the children in those families who should not be deprived of their parents because those parents are not married or used assisted reproduction, Bonauto said.
Gallagher's lawyer, Jennifer Lamanna, said the ruling sends the case back to family court, where Partanen can continue to pursue her claim of full legal parentage. She said Gallagher can still contest the claims to parentage made by Partanen, but has not yet made a decision on whether to do that.
"My client still feels like she took the necessary steps to prevent someone else from encroaching on her legal parentagehood, in not marrying her, not putting her name on the birth certificates, not allowing her to adopt the children," Lamanna said.
In an interview in April, Gallagher acknowledged that Partanen has been a good parent and said she would never attempt to remove the children from her life. The children spend half their time with Partanen under a shared custody order.
Gallagher said then that she was challenging Partanen's bid to be declared a full legal parent, which would allow her to share in virtually every decision made about the children.
"I am a biological mother. I wanted to have children. They're my world, and it's my right to make legal decisions for them," Gallagher said.
Lamanna argued that Partanen was trying to obtain legal rights she would be entitled to only if she had married Gallagher, adopted the children or filed a voluntary acknowledgement of paternity.
More than 35 states confer parentage on spouses who consent to assisted reproductive technology, as Partanen did. Seven of those states and the District of Columbia give legal parentage to the person who consents to the procedure with the intent to parent the resulting child, without regard to marital status, according to fertility associations and attorneys who submitted written arguments supporting Partanen.
News from © The Associated Press, 2016