The Massachusetts Parentage Act
A Step Towards Parentage Equality for All…
The Massachusetts Parentage Act (MPA), a new law that went into effect on January 1, 2025, revolutionizes how parentage may be legally recognized in the Commonwealth. The MPA replaces outdated language with inclusive gender-neutral language so that its provisions reflect the great diversity of families in Massachusetts. For example, “paternity” is now “parentage,” “mother and father” is now “parents,” and the statute is now titled “Non-marital Children and Parentage of Children” rather than “Children Born Out of Wedlock.”
Parentage is the legal relationship between a child and a parent of the child. Establishing parentage is important for the well-being of a child because the relationship is the foundation of various rights and responsibilities for both the parent and child alike, including access to educational and medical records, tax benefits, health insurance, government benefits, inheritance rights, financial support, custody, and parenting time. The MPA does not make changes to custody, parenting time, or child support. The changes pertain to who can be the legal parent of a child and how parentage can be established. Pathways to parentage include giving birth, executing a Voluntary Acknowledgement of Parentage (VAP) with the birth parent, adoption, assisted reproduction and surrogacy, obtaining an adjudication of parentage, de facto parentage, and presumptions of parentage.
A VAP is a simple form that parents can sign in the hospital or later to voluntarily establish parentage. VAPs were previously only available to genetic parents. Now, the Act codifies that in addition to genetic parents, presumed parents and intended parents can establish parentage through a VAP. This means that a person who utilizes assisted reproduction when building their family, or a person who does not have a genetic relationship with the child but receives the child in their home and openly holds out the child as their own, has new options to establish parentage. As a VAP is an equivalent to a court decree of parentage, this change is particularly important for the security of LGBTQ families who often face discrimination and worry about the status of their parent-child relationship. Prior to the MPA, LGBTQ families routinely relied on confirmatory adoptions, or second-parent adoptions, to establish parentage. Although now a VAP may be an easier route for LGBTQ families to establish parentage, it is important for individuals to speak with an attorney regarding the specific facts surrounding their family to obtain advice on whether a confirmatory adoption is still recommended as an additional level of protection.
A de facto parent is a parent that does not have a biological relation to the child but has meaningfully participated in the child’s life as a family member. Although Massachusetts Courts have long acknowledged de facto parenthood, the common law doctrine only permitted de facto parents to seek parenting time. The MPA now includes persons who establish de facto parentage within the legal definition of “parent,” therefore permitting de facto parents to petition for all rights and responsibilities that may stem from the parent-child relationship. Accordingly, de facto parents may now obtain custody of their child if a court determines doing so is in the best interest of the child. The person seeking to establish de facto parentage must demonstrate seven requirements: 1) they resided with the child as a regular member of the child’s household for a period determined by the child’s age, 2) they engaged in consistent caregiving of the child, 3) they undertook full and permanent responsibilities of a parent of the child without expectation or payment of financial compensation, 4) they held out the child as their child, 5) they established a bonded and dependent relationship with the child that is parental in nature, 6) the child’s parent(s) consented to the bonded and dependent relationship, and 7) adjudicating them to be the child’s parent is in the child’s best interest. Consent can be implied where a parent has not engaged with the child directly or participated in decision making or provided regular financial support for at least two years. Notably, a parent cannot bring a de facto parentage action against another to request child support under the MPA; the Act only authorizes the alleged de facto parent to commence the action.
The Act also authorizes the court to adjudicate a child to have more than two parents if doing so is in the best interest of the child. This can happen when more than two people have competing claims to parentage of a child. The court will consider the child’s age, the length of time each parent has assumed the role of parent, the nature of the parent-child relationship, the basis for each person’s claim to parentage, the harm to the child if the relationship is not recognized, and any other factor arising from disruption of the relationship between the child and each person.
Assisted reproduction is a method of causing pregnancy other than sexual intercourse, including but not limited to artificial insemination, intrauterine, intracervical, or vaginal insemination, donation of gametes or embryos, IVF, and transfer of embryos. The MPA provides that a person who consents to assisted reproduction shall be a parent of the child. Consent can be shown through a record signed by the birth parent and the intended parent on or after the birth of the child. If there is no written record, consent can be established through a finding by the court that prior to conception or the birth, the parties agreed that they would be parents of the child, or the person who seeks to be a parent of the child, together with the person giving birth, voluntarily participated in and consented to the assisted reproduction that resulted in the conception of the child. Now, a person who becomes a parent through assisted reproduction can obtain a pre-birth judgment declaring them to be the parent of the child immediately upon the birth of the child, ordering that parental rights and responsibilities vest immediately upon the birth, and designating them as the parent on the child’s birth certificate.
Finally, the MPA provides clear instruction on the requirements of and enforceability of surrogacy agreements. Parties to a surrogacy agreement must be at least twenty-one years of age. The surrogate must have previously given birth to at least one child and must undergo a medical evaluation and a mental health consultation. The intended parent(s) must also undergo a mental health consultation. The agreement must be signed by the surrogate, their spouse if applicable, and the intended parent(s), and all parties to the Agreement must be represented by counsel. The requirements relative to when the agreement is signed, and enforceability and validation of the surrogacy agreement by the court depend on if the surrogacy is a gestational surrogacy or genetic surrogacy. It is therefore important to consult with an attorney prior to attempting conception through surrogacy to ensure the requirements are met and for assistance in drafting the agreement.
The MPA offers families long overdue rights and protections by providing updated paths to parentage and is a critical step towards parentage equality for all.
Julie A. Dialessi-Lafley is a shareholder with Bacon Wilson, P.C. and chairs the firm’s Family Law department. She is a certified family law mediator, a member of the Springfield Women’s Leadership Council, and is licensed to practice law in both Massachusetts and Connecticut; (413) 781-0560; [email protected].
Britaney N. Guzman-Bailey is an associate with Bacon Wilson, P.C. She is a member of the Hispanic National Bar Assoc., the Hampden County Bar Assoc., and the Massachusetts LGBTQ Bar Assoc. She concentrates her practice in the areas of Domestic Relations and Family Law. Britaney may be reached at (413) 781-0560 or [email protected].