Partanen v. Gallagher , 475 Mass. 632 ( 2016 )

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SJC-12018
KAREN PARTANEN vs. JULIE GALLAGHER.
Middlesex. April 5, 2016. - October 4, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1
Parentage. Statute, Construction.
Complaint in equity filed in the Middlesex Division of the
Probate and Family Court Department on October 17, 2014.
A motion to dismiss was heard by Jeffrey A. Abber, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Mary Lisa Bonauto (Elizabeth A. Roberts, Teresa Harkins La
Vita, Patience Crozier, & Joyce Kauffman with her) for the
plaintiff.
Jennifer M. Lamanna for the defendant.
The following submitted briefs for amicus curiae:
C. Thomas Brown for Greater Boston Legal Services & others.
Emily R. Shulman, Brook Hopkins, & Adam M Cambier for
American Academy of Assisted Reproductive Technology Attorneys &
others.
1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
Abigail Taylor, Gail Garinger, Brittany Williams, & Andrea
C. Kramer, Assistant Attorneys General, for the Attorney
General.
Shannon Minter, of California, Marco J. Quina, & Emma S.
Winer for forty-two law professors & another.
LENK, J. In 2014, the plaintiff, Karen Partanen, filed a
complaint in the Probate and Family Court seeking to establish
legal parentage of two young children. The complaint alleged
that she and the defendant, Julie Gallagher, had been in a
committed, nonmarital relationship between 2001 and 2013. Using
in vitro fertilization, and with Partanen's "full
acknowledgment, participation, and consent," Gallagher gave
birth to the two children. Thereafter, Partanen and Gallagher
represented themselves publicly as the children's parents, and
jointly raised the children until their 2013 separation. On the
basis of these allegations, Partanen's complaint sought a
declaration of parentage pursuant to, among other things, G. L.
c. 209C, § 6 (a) (4). That statute provides that "a man is
presumed to be the father of a child" born out of wedlock if
"he, jointly with the mother, received the child into their home
and openly held out the child as their child." Concluding that
Partanen could not be deemed a presumed parent under G. L.
c. 209C, § 6 (a) (4), because it was undisputed that she was not
the children's biological parent, a judge of the Probate and
Family Court dismissed the complaint for failure to state a
3
claim upon which relief can be granted. See Mass. R. Dom. Rel.
P. 12(b)(6).
In addressing Partanen's claims on direct appellate review,
we consider the question whether a person may establish herself
as a child's presumptive parent under G. L. c. 209C,
§ 6 (a) (4), in the absence of a biological relationship with
the child. We conclude that she may. We conclude further that,
here, the assertions in Partanen's complaint are sufficient to
state a claim of parentage under G. L. c. 209C (statute).
Therefore, we reverse the judgment of dismissal and remand the
matter to the Probate and Family Court for further proceedings.2
1. Background. The facts are largely undisputed. The
following facts are drawn from the complaint, which we take as
true in reviewing a dismissal under Mass. R. Dom. Rel.
P. 12(b)(6), with certain minor, undisputed details drawn from
elsewhere in the record. See Schaer v. Brandeis Univ., 432
Mass. 474, 477 (2000).
2
Because we conclude that Karen Partanen's complaint is
sufficient to establish parentage under G. L. c. 209C, § 6, and
should not have been dismissed, we do not address her claims
that she is entitled to a declaration of parentage under G. L.
c. 46, § 4B (presumptive parentage of child born through
artificial reproductive technology to married couple), or,
alternatively, under G. L. c. 215, § 6 (court's equitable power
to establish parentage). For the same reason, we do not address
Partanen's constitutional claims. See Matter of McKnight, 406
Mass. 787, 797 (1990) ("this court is not likely to resolve an
issue on constitutional grounds if the court may dispose of it
by a consideration of rights created by statute").
4
In February, 2001, while they were both living in
Massachusetts, Partanen and Gallagher entered into a committed
relationship. They moved to Florida in 2002, and, the following
year, together purchased a house there. In 2005, they decided
to start a family "with the shared intention that they would
both be parents to the resulting children." That year, Partanen
unsuccessfully underwent fertility treatment using a sperm donor
and in vitro fertilization. In 2007, Gallagher underwent
similar treatment "with the full acknowledgment, participation,
and consent of" Partanen. This treatment was successful, and,
with Partanen present, Gallagher gave birth to a daughter, Jo.3
In 2011, Gallagher again underwent fertility treatment, "with
the full acknowledgment, participation, and consent of"
Partanen.4 The treatment was successful, and, in 2012, Gallagher
gave birth to a son, Ja.
Though Partanen did not formally adopt the children,5 she
participated in raising them from the time of their birth. Her
participation included "waking for night-time feedings, bathing,
meal preparation, grocery shopping, transportation to/from day
3
We refer to the children by pseudonyms.
4
The plaintiff participated in the insemination procedure,
injecting the sperm that would lead ultimately to the
defendant's second pregnancy.
5
In 2010, adoption became available to same-sex couples in
Florida. See Florida Dep't of Children & Families v. Adoption
of X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010).
5
care and school, staying home with the children during times of
illness, clothes shopping, providing appropriate discipline as
necessary, addressing their developmental needs, [and]
comforting" them. Partanen was involved also "in all decision-
making for the children," including in matters related to their
education and healthcare. Partanen "provided [the children]
consistent financial support," and both children referred to
Partanen as "Mommy." Partanen and Gallagher represented
themselves publicly as the children's parents in formal contexts
such as at the children's schools and for medical appointments,
as well as in their interactions with friends and family. They
vacationed as a family, shared expenses, purchased joint assets,
and sent family holiday cards.
In May, 2012, after the birth of Ja, Partanen and Gallagher
returned to Massachusetts with the children.6 In November, 2013,
the couple separated, and Partanen moved out of the family home.
Partanen filed an action to establish de facto parentage in
February, 2014. She requested visitation with the children and
shared legal custody. In September, 2015, a judge of the
Probate and Family Court ruled that Partanen was a de facto
6
Although same-sex marriage was then possible in
Massachusetts, see Goodridge v. Dep't of Pub. Health, 440 Mass.
309 (2003), Partanen and Gallagher did not marry.
6
parent of the children, issued orders regarding visitation, and
required her to pay child support.7
In October, 2014, Partanen filed the present action in the
Probate and Family Court "to establish [full legal] parentage."8
In February, 2015, Gallagher's motion to dismiss the complaint
for "[f]ailure to state a claim upon which relief can be
granted," Mass. R. Dom. Rel. P. 12(b)(6), was allowed.
2. Discussion. a. Standard of review. In reviewing the
dismissal of a complaint pursuant to Mass. R. Dom. Rel.
P. 12(b)(6), "[w]e accept as true the facts alleged in the . . .
complaint as well as any favorable inferences that reasonably
can be drawn from them." See Polay v. McMahon, 468 Mass. 379,
382 (2014), quoting Galiastro v. Mortgage Elec. Registration
Sys., Inc., 467 Mass. 160, 164 (2014).9
b. Statutory language. General Laws c. 209C, § 1,
provides "[c]hildren born to parents who are not married to each
7
That action is the subject of a separate appeal, and is
not before us.
8
See A.H. v. M.P., 447 Mass. 828, 843 (2006) ("a de facto
parent" is not "afforded all of the privileges of a legal
parent" [citation omitted]).
9
We address Partanen's claim under Massachusetts law.
Gallagher's contention that Florida law governs was not raised
in the Probate and Family Court, and therefore is waived. See
Adoption of Peggy, 436 Mass. 690, 698, cert. denied, 537 U.S.
1020 (2002) (claim regarding choice of law waived). See also
Hunter v. Rose, 463 Mass. 488 (2012) (applying Massachusetts
law, including G. L. c. 209C, where child was conceived and born
out-of-State using artificial reproductive technology).
7
other" "a means" to obtain an "adjudication of their
[parentage.]"10 Actions to establish parentage under G. L.
c. 209C may be brought by, among others, "a person presumed to
be" the child's parent. See G. L. c. 209C, § 5 (enumerating
persons entitled to bring actions to establish "paternity,
support, visitation or custody of a child" born out of wedlock);
G. L. c. 209C, § 6 (defining presumed parentage). Here,
Partanen contends that she is "presumed to be" the children's
mother, and therefore may pursue an action for parentage.
To survive a motion to dismiss, Partanen must allege facts
sufficient to establish that she is a "presumed parent" under
G. L. c. 209C, two provisions of which are relevant here.
First, she must allege that Jo and Ja are "children" as that
term is used in the statute, i.e., people "born to a man and
woman who are not married to each other." See G. L. c. 209C,
§ 1. Read in gender-neutral terms, see G. L. c. 209C, § 21;
G. L. c. 4, § 6, Fourth, this requires an allegation that the
10
While G. L. c. 209C, "Children Born Out of Wedlock," uses
the gendered phrase "adjudication of paternity," see G. L.
c. 209C, § 1, we interpret the statute as providing a means for
establishing parentage regardless of the parent's gender. See
Hunter v. Rose, supra at 493 (applying G. L. c. 209C in context
of relationship between two women); G. L. c. 4, § 6, Fourth (in
all statutes, "words of one gender may be construed to include
the other gender and the neuter"). See also G. L. c. 209C, § 21
(in "an action to determine the existence of a mother and child
relationship," "the provisions of this chapter applicable to
establishing paternity shall apply").
8
children were "born to [two people] who are not married to each
other."
Second, Partanen must allege adequately that she satisfied
the "holding out" provision of G. L. c. 209C, § 6 (a), which
states:
"(a) In all actions under this chapter a man is
presumed to be the father of a child . . . if:
". . .
"(4) while the child is under the age of majority, he,
jointly with the mother, received the child into their home
and openly held out the child as their child."
In gender-neutral terms, Partanen must allege that she, "jointly
with the mother [i.e., Gallagher], received the child[ren] into
their home, and openly held out the child[ren] as their
child[ren]."
Partanen maintains that the facts alleged in her complaint
satisfy both the "born to" and "holding out" provisions. With
respect to the requirement that the children be "born to" two
people, G. L. c. 209C, § 1, Partanen asserts that the children
were born both to her and to Gallagher, because Gallagher's
pregnancies and the children's births took place with Partanen's
"full acknowledgment, participation, and consent."11 She asserts
11
It is undisputed that the children were not "born to"
their genetic fathers, the sperm donors. See Adoption of a
Minor, 471 Mass. 373, 378 n.8 (2015) ("sperm donor may assert
parentage only where he donates . . . 'with the intent to be the
parent of [the] child'" [citation omitted]).
9
also, with respect to the "holding out" provision, that she and
Gallagher jointly received the children into their home and
openly held out the children as theirs. See G. L. c. 209C,
§ 6 (a). Gallagher contends, however, that Partanen's complaint
cannot survive a motion to dismiss because the provisions of
G. L. c. 209C -- and, in particular, those in G. L. c. 209C,
§ 6, concerning presumed parentage -- were intended only as a
means of establishing biological parentage, and are inapplicable
where, as here, it is known that no biological connection
exists.
The question we must address, then, is whether Partanen may
establish that she is the children's "presumed parent" under
G. L. c. 209C, § 6 (a), by alleging that the children were born
to her and to Gallagher, were received jointly into their home,
and were openly held out as the couple's children, where it is
known that she has no biological relationship to the children.
c. Statutory construction. As with all statutes, G. L.
c. 209C must be construed "according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers may be
10
effectuated." Seideman v. Newton, 452 Mass. 472, 477 (2008),
quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934).
We turn first to the statutory language. See Associated
Subcontractors of Mass., Inc. v. University of Mass. Bldg.
Auth., 442 Mass. 159, 164 (2004) ("As always, our analysis
begins with the statutory language . . ."). While the
provisions at issue speak in gendered terms, they may be read,
as discussed, in a gender-neutral manner, to apply where a child
is "born to [two people]," G. L. c. 209C, § 1, is received into
their joint home, and is held out by both as their own child.
See G. L. c. 209C, § 6 (a). 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.12
12
Gallagher argues that, even under a reading that applies
these provisions to same-sex couples, a biological link to the
child still could be required, since two women might each have
such a link: one by having provided the ovum and the other by
having carried the child. Here, Partanen has no biological link
to the children, as she was neither the egg donor nor the
carrier. Nonetheless, properly read as gender-neutral, G. L.
c. 4, § 6, Fourth, these provisions may apply not only to a
child born to two women, but also to a child born to two men
through a surrogacy arrangement. In such a situation, at least
one of the men will be unable to form a direct biological
relationship with the child in the manner that Gallagher
suggests, since only one can directly contribute his genetic
material (though the other may do so indirectly, by asking a
female relative to provide the egg), and neither can carry the
child.
11
Nothing in the language of G. L. c. 209C expressly limits
its applicability to parentage claims based on asserted
biological ties. See Chin v. Merriot, 470 Mass. 527, 537 (2015)
("We will not 'read into the statute a provision which the
Legislature did not see fit to put there'" [citation omitted]).
This silence is particularly significant because G. L. c. 209C
is a remedial statute, see Flynn v. Connors, 39 Mass. App. Ct.
365, 368 n.9 (1995) (G. L. c. 209C should be read to "extend to
cases within the reason, if not the letter, of the statute"),
which must "be given a broad interpretation . . . in light of
its purpose and to 'promote the accomplishment of its beneficent
design'" (citation omitted). See Meikle v. Nurse, 474 Mass.
207, 210 (2016). The statute's purpose, laid out in its first
sentence, is to provide all "[c]hildren born to parents who are
not married to each other . . . the same rights and protections
of the law as all other children." G. L. c. 209C, § 1.
Here, had Jo and Ja been born to a married couple using
artificial reproductive technology, they would have had two
legal parents to provide them with "financial and emotional
support." See Hunter v. Rose, 463 Mass. 488, 493 (2012), citing
G. L. c. 46, § 4B (children born to one same-sex spouse are
legal children of both spouses, even where one not biologically
related to children). We decline to "read into the statute a
provision," see Chin v. Merriot, supra, that leaves children
12
born to unmarried couples, using the same technology, with only
one such parent. Cf. Smith v. McDonald, 458 Mass. 540, 546
(2010) ("While a statute governing divorced children is not
applicable directly to nonmarital children, the legal equality
of nonmarital children pursuant to G. L. c. 209C, § 1, dictates
the same rule apply for children in comparable circumstances").
That the presumption of parentage in G. L. c. 209C,
§ 6 (a) (4), may be construed to apply even where biological
ties to the children are absent is consistent with our
construction of other provisions in the statute. See Phillips
v. Pembroke Real Estate, Inc., 443 Mass. 110, 117 (2004) ("we
look to other provisions of the statute for indicia of
[legislative] intent, and for the purpose of interpreting the
statute as a consistent whole"). For example, in Hunter v.
Rose, supra, we applied another of the parentage presumptions in
G. L. c. 209C, § 6 (a) -- that "a man is presumed to be the
father" if "the child was born during [the father's] marriage"
to the mother -- to a child born to two married women, one of
whom had no biological relationship to the child.
We also have interpreted another provision in the statute,
G. L. c. 209C, § 11 (a), as recognizing parentage in the absence
of a biological relationship. That section provides that
parentage may be established through a "written voluntary
acknowledgement of parentage executed jointly by the putative
13
father . . . and the mother of the child," id., and we have said
that a father validly may execute such an acknowledgment absent
a genetic relationship.13 See Paternity of Cheryl, 434 Mass. 23,
32 (2001) (man could not rescind acknowledgment of paternity
years after signing it merely because genetic testing showed him
not to be biologically related to child). In that case, we
explained that a "man may acknowledge paternity for a variety of
reasons," that "we cannot assume that biology is the sole
impetus in every case," and that, in proceedings under G. L.
c. 209C, "consideration of what is in a child's best interests
will often weigh more heavily than the genetic link between
parent and child." Paternity of Cheryl, supra at 31-32.
From this, it is apparent that a biological connection is
not a sine qua non to the establishment of parentage under G. L.
c. 209C. Indeed, Gallagher concedes that a voluntary
acknowledgment of parentage may be executed by a same-sex
couple, even if one member of the couple is not biologically
related to the children, and that, had an acknowledgment been
13
The acknowledgment at issue in Paternity of Cheryl, 434
Mass. 23 (2001), was executed before the substantial 1998
amendments to G. L. c. 209C, § 11. See St. 1998, c. 64, § 205,
"An Act to improve the Massachusetts child support enforcement
program." We recognized that our decision in that case was
consistent with the Legislature's clear intention in amending
G. L. c. 209C, § 11, to limit the ability of a voluntary
signatory to an acknowledgment to challenge its validity at some
later time. See Paternity of Cheryl, supra at 29, 39.
14
executed here, it would have established Partanen as the
children's legal parent.
Notwithstanding this assertion, however, Gallagher contends
that, even if Partanen satisfies the "holding out" provision of
G. L. c. 209C, § 6 (a), any presumption created on this basis
may be rebutted by evidence that she lacks a biological
connection to the children, i.e., that the children were not
"born to" her. See G. L. c. 209C, § 1. Gallagher's argument
apparently is rooted in G. L. c. 209C, § 17, which provides that
in "an action under this chapter to establish [parentage] of a
child born out of wedlock, the court shall, on motion of a party
and upon a proper showing . . . order the . . . putative
[parent] to submit to one or more genetic marker tests." Thus,
Gallagher claims that she might seek an order to have Partanen
undergo such testing, and thereby rebut any presumption of
parentage created under G. L. c. 209C, § 6 (a).14
14
Gallagher points also to two other provisions in G. L.
c. 209C that, she maintains, indicate the Legislature's intent
to limit the statute's applicability to biological children.
See G. L. c. 209C, § 8 (default judgment establishing parentage
may enter against father only if "the mother or putative father
submits that sexual intercourse between the parties occurred
during the probable period of conception"); G. L. c. 209C,
§ 11 (a) (if parent attempts to rescind voluntary
acknowledgement of parentage, "the court shall order genetic
marker testing"). To the extent that these provisions focus on
proving or disproving a biological relationship, they are
applicable only where the underlying parentage claim is based on
biology, and not, as here, where the claim is made on another
basis. See G. L. c. 209C, § 11 (a) (genetic testing mandatory
15
This claim is unavailing. The statute's language expressly
conditions an order of genetic testing on "a proper showing" by
the moving party. G. L. c. 209C, § 17. Where, as here, the
parentage claim is not based on a genetic relationship,
Gallagher, as the moving party, cannot show such testing would
be relevant to the claim at issue, and, therefore, no "proper
showing" is possible.15 See Elisa B. v. Superior Court, 37 Cal.
4th 108, 122 (2005) (while statute allows rebuttal of presumed
parentage by genetic testing in "an appropriate action," case
where parentage claim is not based on biological connection "is
not 'an appropriate action' in which to rebut the presumption of
presumed parenthood with proof that [plaintiff] is not the
[children's] biological parent"). See also Chatterjee v. King,
280 P.3d 283, 294-295 (N.M. 2012).
only where acknowledgement of parentage "constitute[s] the
proper showing required for an order to submit to such testing,"
i.e., where biological relationship is at issue); Culliton v.
Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 290 (2001)
(evidence of occurrence of intercourse under G. L. c. 209C, § 8,
not relevant to parentage claim where pregnancy is result of
"reproductive advances[, which] have eliminated the necessity of
having sexual intercourse in order to procreate").
15
That the parentage presumption may not be rebutted
through genetic testing, however, does not mean that it cannot
be rebutted in other ways. Rebuttal may be accomplished by
proof that the child, even if held out by the putative parent as
his or her own, was not actually "born to" that parent. See
G. L. c. 209C, § 1. For example, here, Gallagher might show
that Partanen's assertions about her having consented to the
inseminations, and about her involvement in the ensuing
pregnancies and births, are untrue.
16
Gallagher cites a number of cases to support her contention
that a biological relationship is necessary to establish
parentage under G. L. c. 209C. In one of these, C.M. v. P.R.,
420 Mass. 220 (1995), we held that a man was not a legal parent
under G. L. c. 209C to a child born to his nonmarital partner,
where the child was conceived before their relationship began.
We based this conclusion on an assumption that, "[b]y
definition," paternity cannot be established under G. L. c. 209C
by "a person who is not the biological father of a child." See
C.M. v. P.R., supra at 223. We since have made clear, however,
that this assumption is incorrect. See Paternity of Cheryl, 434
Mass. at 34 (judgment of paternity under G. L. c. 209C may
be upheld "even though [putative father] may establish
conclusively that he is not a child's genetic parent").
Gallagher also cites two decisions that postdate Paternity
of Cheryl. One concerns notably different factual circumstances
from those at issue here. See T.F. v. B.L., 442 Mass. 522, 527-
531 (2004) (woman not required, under contract law, to pay child
support to former same-sex partner for child born after their
separation; child was never received into their joint home or
held out as child of both women). In the other, R.D. v. A.H.,
454 Mass. 706, 714 (2009), we held that a de facto parent did
not have the same right to custody as a full legal parent under
G. L. c. 209C, § 10, and therefore could not obtain custody
17
against the wishes of such a parent, because "the term 'parent'
[as used in that statute] refers to a biological parent" rather
than to a de facto parent. In the context of that case, our
intention was evident: to distinguish a de facto parent from a
legal parent. We did not intend to suggest that G. L. c. 209C
is limited only to parentage based on biology. Indeed, the
result there would have been the same had the de facto parent
sought custody against the wishes of a nonbiological adoptive
parent. See G. L. c. 210, § 6 (adoptive parent has "all rights,
duties and other legal consequences of" parentage).
Gallagher contends also that allowing Partanen's claim to
proceed intrudes on Gallagher's "right [as] a single woman to
give birth to a child into a family framework of her own
choosing."16 The question in this case, however, is not whether
courts may impose a second parent onto a single-parent family,
but whether this was, in fact, a single-parent family in the
first place. Partanen's allegation is that, from the beginning,
the children had two parents, both of whom were jointly involved
in the children's lives.
16
Gallagher notes that the Legislature has required
insurance companies to cover fertility treatments and has not
limited this requirement to married or partnered women,
suggesting, in her view, a policy of protecting the rights of
single women to create a family in the absence of a second
parent. See, e.g., G. L. c. 175, § 47H.
18
Moreover, while Gallagher has an acknowledged interest in
constructing "a family framework of her own choosing," the
statute at issue was enacted for the benefit of children born
outside the context of marriage, see G. L. c. 209C, § 1, whose
"welfare is promoted by ensuring that [they] ha[ve] two parents
to provide . . . financial and emotional support."17 See Hunter
v. Rose, 463 Mass. at 493. As another court has observed,
"paternity presumptions are driven, not by biological
paternity, but by the [S]tate's interest in the welfare of
the child and the integrity of the family. . . . The
familial relationship between a nonbiological [parent] and
[a] child . . . , resulting from years of living together
in a purported parent/child relationship, is considerably
more palpable than the biological relationship of actual
paternity and should not be lightly dissolved" (citations
omitted).
In re Guardianship of Madelyn B., 166 N.H. 453, 461 (2014).
We note, in this regard, that courts in other jurisdictions
have read comparable provisions to establish presumed parentage
in the absence of biological relationships, and have done so, in
17
Gallagher contends that the purpose of the statute will
be ensured through the adjudication of Partanen as a de facto
parent, and that full legal parentage will not provide
significant additional benefits. This contention is
inconsistent with established case law. See A.H. v. M.P., 447
Mass. at 843 ("a de facto parent" is not "afforded all of the
privileges of a legal parent" [citation omitted]). See also
R.D. v. A.H., 454 Mass. 706, 711 (2009) (full legal parent may
obtain primary custody over other parent's objection where in
best interests of child; de facto parent may obtain such custody
only if legal parent first found to be unfit); American Law
Institute, Principles of the Law of Family Dissolution:
Analysis and Recommendations § 3.10 & comment c (2002) (limiting
circumstances in which de facto parent is liable for child
support).
19
part, out of concern for the welfare of children born out of
wedlock.18 See, e.g., Elisa B. v. Superior Court, 37 Cal. 4th at
120, 122 ("The circumstance that [former member of same-sex
couple pursuing parentage claim] has no genetic connection to
the twins does not . . . mean that she did not hold out the
twins as her . . . children" and that she is not their presumed
parent; "[r]ebutting the presumption that [she] is [their]
parent would leave them with only one parent and would deprive
them of the support of their second parent"); In re Parental
Responsibilities of A.R.L., 318 P.3d 581, 584, 587 (Colo. Ct.
App. 2013) (female former same-sex partner, not biologically
related to child, may pursue parentage claim under provision
that "a man is presumed to be the father of a child if 'he
receives the child into his home and openly holds out the child
as his natural child'"; "[t]his interpretation is
supported . . . by the compelling interest children have in the
love, care, and support of two parents, rather than one,
whenever possible [citation omitted]); In re Guardianship of
Madelyn B., 166 N.H. at 460, 462 (former same-sex partner, not
18
See also Frazier v. Goudschaal, 296 Kan. 730, 747 (2013)
("female can make a colorable claim to being a presumptive
mother of a child without claiming to be the biological or
adoptive mother" under provision that person is presumed parent
if she "notoriously . . . recognizes [the parentage] of the
child" [citation omitted]). The court in that case reached this
result based on constitutional considerations that we need not
address here. See id. at 754.
 20
biologically related to child, may pursue parentage claim
because she "adequately pleaded that she received [the child]
into her home and openly held [the child] out as her child";
were this not so, "a child in a situation similar . . . could be
entitled to support from, and be the legitimate child of, only
her birth mother"); Chatterjee v. King, 280 P.3d at 293, 296
(former same-sex partner, not biologically related to child, may
pursue parentage claim because "her allegations satisfy the hold
out provision of" statute; "the child's best interests are
served when intending parents physically, emotionally, and
financially support the child"). See also Uniform Parentage Act
§ 703 (2002) (person who "consents to . . . assisted
reproduction by a woman . . . with the intent to be the parent
of her child . . . is a parent of the resulting child"); id. at
§ 703 comment ("This provision reflects the concern for the best
interests of nonmarital as well as marital children . . .").
Having determined that a person without a biological
connection to a child may be that child's presumed parent under
G. L. c. 209C, § 6 (a), we must decide whether, in this case,
Partanen adequately has alleged that she is such a parent. We
conclude that she has. Partanen was required to allege, first,
that the children were born both to Gallagher and to her. See
G. L. c. 209C, § 1. In this regard, Partanen claims that both
of Gallagher's pregnancies were undertaken "with the full
21
acknowledgment, participation, and consent of" Partanen, and
"with the shared intention that [the defendant and plaintiff]
would both be parents to the resulting children." She states
also that she was present in the delivery room when the children
were born. These allegations suffice to establish, for purposes
of Mass. R. Dom. Rel. P. 12(b)(6), that the children were born
both to her and to Gallagher. See Elisa B. v. Superior Court,
37 Cal. 4th at 125 (nonbiological mother "actively participated
in causing the children to be conceived with the understanding
that she would raise the children as her own together with the
birth mother"); In re Guardianship of Madelyn B., 166 N.H. at
462 (both parties "planned to have and raise children together,"
"prepar[ing the child's] nursery together in the home they had
jointly purchased"; nonbiological mother "was in the delivery
room").
Partanen was required also to allege that she and Gallagher
"received the child into their home and openly held out the
child as their child." G. L. c. 209C, § 6 (a) (4). In her
complaint, Partanen asserts that she helped raise the children
in the home she shared with Gallagher, that she participated
actively in the care and nurturing of the children from the
moment of their birth, that she was involved in key decisions,
that she and Gallagher represented themselves to others -- both
in formal and informal contexts -- as the children's parents,
22
and that the children refer to her as "Mommy." These
allegations, too, are sufficient. See Elisa B. v. Superior
Court, supra (nonbiological mother "voluntarily accepted the
rights and obligations of parenthood after the children were
born"); In re Guardianship of Madelyn B., supra at 463
(nonbiological mother was called "Momma," "appeared 'to the
world' to be [child]'s parent," and was referred to as such in
child's "school and medical records").
3. Conclusion. The judgment of dismissal is reversed, and
the case is remanded to the Probate and Family Court for further
proceedings consistent with this opinion.
So ordered.