May 14, 2024 - News

Massachusetts parentage laws exclude many LGBTQ+ families, advocates say

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Illustration: Aïda Amer/Axios

Two decades after winning the right to marry, gay couples in Massachusetts are still being separated from their children because they don't share DNA.

Why it matters: LGBTQ+ parents and advocates say the state's laws fail to secure the same protections that biological parents have in court.

  • The gaps in the law ultimately hurt unmarried, non-biological parents, often those in same-sex relationships, and their children the most, says Polly Crozier, director of family advocates at GLBTQ Legal Advocates and Defenders.

Kam Thompson, a former Worcester-area resident, learned that the hard way.

  • Thompson's partner was visiting family in North Carolina in 2016 when her water broke, six weeks early.
  • They had planned to marry before their son's birth. Instead, they married six days after he arrived, but Thompson still didn't get put on the birth certificate.
  • Thompson and her partner spent weeks watching their son in the NICU before he could recover and eventually head to Massachusetts with them.

Years later, when Thompson and her partner hit a rough patch, the state Department of Children and Families removed their son from their home.

  • While DCF appointed his birth mother an attorney and let her petition for their son back, the state didn't offer Thompson the same options because she wasn't legally considered a parent.
  • If they had been married before their son's birth, or if he had been born in Massachusetts, Thompson would have been legally recognized as a second parent from the start.

What they're saying: "I didn't know if I was ever going to see my kid again," Thompson says.

Zoom out: For years, Massachusetts has had one of the highest share of babies resulting from artificial reproductive technology, including IVF.

  • But the state doesn't explicitly recognize non-biological parents who had children through these means or adults who have stepped in as parents.
  • Those statues especially exclude LGBTQ+ couples who have come to rely on those methods to start families, Crozier says. That could put children in these families at higher risk of being separated from their parents, just because they don't share DNA.
  • Recent court rulings on abortion have complicated matters more for these couples. An Alabama ruling in February deemed frozen embryos legally children, which prompted clinics to halt assisted reproduction for would-be parents.
  • The ruling has had a chilling effect on LGBTQ+ parents who say they fear traveling to Alabama or other states where their parenthood may come into question.

Zoom in: In 2019, Thompson's attorney had to convince the family court to recognize Thompson as a parent using case law that had been interpreted in gender-neutral terms just three years earlier.

  • Without that, Thompson would have struggled to be recognized as a legal parent, despite being present for the insemination process and raising her son.
  • Thompson was able to start visiting her son after two months.
  • He spent more than a year in foster care before being reunited with his parents.

Now Crozier, Thompson and a group of other parents are pushing for legislation to explicitly protect all paths to parenthood, whether they're parents through birth, surrogacy, marriage or other ways.

  • "I don't feel like anybody should have to go through what I went through in the beginning with DCF and having to fight tooth and nail," Thompson tells Axios.

State of play: The proposal they're backing has been left to languish in the state legislature every two-year session for nearly a decade.

  • State lawmakers on the Judiciary Committee are reviewing the latest iteration. They postponed their reporting deadline twice and now have until June 30 to decide the bill's fate.

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