I’m interrupting my consideration of anonymity/secrecy to discuss a brand-new opinion from the Massachusetts Supreme Judicial Court (SJC). The opinion was issued this morning and you can read the full text if you like. I will, however, summarize what I see as the main points.
JS and VK are a married same-sex couple. JS gave birth to a child–called “Nicholas” by the court, but that’s not his real name–in 2014. The child was conceived using sperm from VK’s brother.
By operation of Massachusetts law, JS and VK were Nicholas’ legal parents from the very beginning. As you can see if you look at the text attached to note six in the opinion, MA law is quite clear on this point: A child born as a result of assisted insemination (or IVF, as was the case here) conducted with spousal consent is considered to be the legal child of the consenting spouse as well as of the woman who gave birth.
The problem for JS and VK, though, is that right now not all states will recognize the parental rights claimed via marriage. That’s because not all states will recognize JS and VK as married. So for instance, where this family to venture into Michigan, they would not be seen as married and, without marriage, VK might be seen to have no legal rights as a parent. (I’ll note as an aside that while it seems quite possible that all states will be required to recognize the marriage in the not so distant future, it still may not be clear that all states have to recognize VK’s parental rights.)
The solution to the problem is to have VK adopt Nicholas. Now it is a bit odd to have a legal parent adopt her own child, but the key thing to know is that all states MUST recognize an adoption. This means that once the adoption is completed, JS and VK can go to Michigan (or anywhere else) if they wish, and still be seen as a legal family.
All this is background to explain why VK is petitioning to adopt her own child. It’s not the question before the SJC. The question raised is whether VK’s brother (the known sperm donor) has to receive notice of the adoption. The Court reasons that he has to receive notice if and only if he is a legal parent–and so it has to decide whether or not he is one. Ultimately it concludes he is not a legal parent and so no notice is required.
The first notable thing is the reasoning the Court does not use. It does not say “Nicholas already has two legal parents—JS and VK (remember, VK is already a parent under MA law. The adoption is just to ensure portability.)–two legal parents are all you get, therefore VK’s brother is out of luck.” Rather, the Court appears to be willing to at least contemplate the possibility that Nicholas has three legal parents–if it turns out the brother is a legal parent.
The court turns away from this possibility when it concludes on page 8 that:
“It is thus presumed that marital children have only two lawful parents: the biological mother and her spouse.”
(I do wonder, however, if this is might be a deliberate use of the negative pregnant–is the Court trying to say that a different rule might apply for non-marital children?) Still not done, though, the court considers whether the genetically related man might have other paths to legal parenthood.
What makes this case slightly different is that he is, of course, a known donor. And as the brother of one of the legal parents he will have a social relationship to the child. That, I assume, is the whole reason the women chose to use his sperm. But his social relationship will not be that of parent/child. Crucially the SJC seems to comprehend this–that you can have a sperm provider who has a social relationship with the child but who is not to be a social father and therefore is not a legal father.
I see this opinion as progress in part because I think about the alternative: A holding that a known donor would be a legal parent would surely have the effect of diminishing the use of known donors. The only concern I have is the degree to which the opinion is confined to married couples. But that’s an issue for another day.