In 1993 the Massachusetts SJC had decided that same-sex couples could adopt. They were also national leaders in this case. This formed the backdrop for the 1999 case.

The facts involved a lesbian couple who had planned the pregnancy of one of the members together and had used a sperm bank. They had split up and the nonbiological parent (the plaintiff in the case) was seeking visitation rights. It was a 13 year relationship (had it been a 3 year relationship it might have been viewed differently). They had talked about having the nonbiological parent adopt, but this had not been initiated. Had she adopted then the case would have been moot- she would have had the same rights to visitation as any parent. The contract with the sperm bank was good, and there had been a contract between the parents that addressed many issues including financial support and responsibility for parenting the child at the present and the agreement that should they ever split up that both should have an active parenting role. The plaintiff had been the birthing coach in the hospital, had been treated by the hospital staff as a parent, the child had a last name consisting of both of the last names of the parents, the child tells people he has two mothers and calls one mommy and one mama, and when the biological mother (the defendant) had a serious illness that incapacitated her for some length of time the plaintiff had cared for the child. And they had hired an attorney to begin the adoption process. The trial court appointed a GAL to investigate what was best for the child, and the GAL recommended that the child have visitation with the plaintiff.

The defendant's argument was that the plaintiff had no legal standing in this case; that she had no legal relationship to the child. Like a favorite babysitter, close family friend or an aunt, the child might be very attached to her, but she has no legal right to mandated visitation. The court rejected this argument saying that the standard to employ in this case is the best interests of the child, and gave the plaintiff generous visitation rights. Note again that all of the above could have been true, but had the GAL not found it was in the best interest of the child to maintain this relationship the case would have turned out differently. This was appealed to the State Supreme Judicial Court to decide this issue of "legal standing". The SJC upheld the lower court's decision that the standard to use is to approach it from the view of the best interest of the child. This will probably mean that a GAL will very likely be assigned in each of these cases. The dissent argued that the court did not have the right to overrule the right of a parent to make decisions about how to raise their children, and that this is an example of the state overstepping its bounds and is a slippery slope to eliminating parent's rights. The SJC rejected this argument, but with difficulty. Judge Harms predicts this is where the argument will unfold in other states.

So what do we advise clients who want to protect themselves?
Two answers. The short answer is that the safest route is to adopt. Once adopted the same custody process as discussed in the session on child custody applies (MGH Community News 12/99). The adoption paperwork can be started so that the adoption can be finalized when the child is 6 months old. The more complicated answer is that we may want to be careful about the advice we give as each of the parties has to consider his/her own interests (and therefore may want their own lawyer) and we may not be able to predict what would be the ideal outcome in the future. Judge Harms shared her experience of many couples where both parties are good people, but where joint custody would not be in the best interest of the child due to relentless conflict between the adults.

What about unmarried heterosexual couples?
This case does not apply to unmarried heterosexual couples where both have a biological relationship to the child. Biological parents have parental rights whether or not they are married. This does not apply either to unmarried heterosexual couples where one party is not the biological parent. That parent is out of luck.

What about when donor eggs are used?
In In Vitro Fertilization clinics like ours, it is not unheard of for lesbian couples to use an egg from one and implant that egg in the other to bear the child. This has not been tested in the courts, but Judge Harms' prediction is that it would be viewed as both being biological parents and thus having parental rights. In cases using unrelated donor eggs the gestational mother is viewed as the biological mother.

Are custody contracts between same-sex parents legally enforceable?
In this case there was a contract between the parents. Judge Harms noted that although this helped to determine the couple's intent before their relationship soured, judges do not have to enforce any contract about the custody of the child if the judge deems it not in the best interest of the child.

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