Adoptions, Sperm Donors and Notice

Adoptions are the happiest occurrences that take place in any courthouse on any given day. But because of advances in science that allow for artificial insemination, legal determinations must continually be made as to what constitutes being a “lawful parent.” The question raised in a recent Massachusetts Supreme Judicial Court case of Adoption of a Minor, SJC-11797, slip op. (May 7, 2015) was whether lawful parents of a child must give notice to the known sperm donor in conjunction with their petition for adoption.

            Pursuant to Massachusetts G. L. c, 46, §4B, “any child born to a married woman as a result of artificial insemination with the consent of her husband shall be considered the legitimate child of the mother and such husband.” The same principle applies to same-sex couples. See Hunter v. Rose, 463 Mass. 488, 492-493 (2012). Notwithstanding the law, many same sex couples still file petitions for adoption to further cement the lawful parent standing of any non-biologically related parent in the event that the couple travels to a state where same-sex marriage is not recognized. Such was the case in Adoption of a Minor. But the Probate & Family Court handling their adoption declined to proceed and issued the above question for determination.

The Massachusetts adoption state requires written consent of certain persons before a decree of adoption may issue. Under G. L. c. 210, §2,

[a] decree of adoption shall not be made…without the written consent of the child to be adopted, if above the age of twelve; of the child’s spouse, if any; of the lawful parents, who may be previous adoptive parents, or surviving parent; or of the mother only if the child was born out of wedlock and not previously adopted.

Because this case did not involve any children over age twelve, or any corresponding spouse of an adult child, and because the case didn’t involve previous adoptive parents, surviving parents or mother of a child born out of wedlock, and because the term “sperm donor” is not used or referenced in the statutory language, the only question was whether a known sperm donor qualified as a “lawful parent.” Where a mother is married when the child was born, a putative (or alleged biological father) father can establish paternity in only one of two ways: either through a voluntary acknowledgement of paternity executed by both parents (meaning the mother and her spouse sign an affidavit indicating that the spouse is not the child’s father, in addition to an affidavit between mother and putative father stating that they are the parents), or through an adjudication of paternity by a court (which requires the putative father prove by clear and convincing evidence that he has a “substantial relationship with the child”).

Notwithstanding a putative father’s ability to potentially establish his paternity, the Court reasoned, nothing in G. L. c. 210 reflects any intent that consent to adoption is required of one who may have a theoretical basis to attempt to establish parentage in the future. Accordingly, the Court answered the question in the negative; or, G. L. c. 210 does not require lawful parents of a child to give notice of a petition for adoption to a known sperm donor.

Whatever your legal situation, you need an attorney who will help you understand your options and the possible consequences of each option. The attorneys at Hutchins Law, P.C. can help you make an informed choice about the legal issues in your life. Contact us today for a free consultation.

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