Married Same-Sex Couples No Longer Need to Adopt Children Born During the Marriage, Or Do They?

Hi there,

Not unexpectedly, the rules on same-sex marriage and parenting are in flux in Massachusetts. One of the changes has been in the area of need to adopt.  My very talented partner, Robin Lynch Nardone, discusses this interesting topic below.




In February 2012, the Massachusetts Appeals Court ruled that a child born of a same-sex marriage is the legitimate child of both people – meaning that both spouses are the legal parents of a child born during the marriage without the need for the “non-biological” parent to adopt the child.  In the case of Gabriella Della Corte v. Angelica Ramirez, Ms. Della Corte was artificially inseminated with the sperm of an anonymous donor approximately two months before Ms. Della Corte and Ms. Ramirez were married in Massachusetts.  The child was born after the date of the marriage.  When the marriage soured, Ms. Della Corte took the position that Ms. Ramirez was not a parent to the child, and thus could not be given custody or parenting rights, given that she had no biological connection and had not adopted the child during the marriage.  The Appeals Court disagreed.

Pursuant to Massachusetts General Laws 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 Appeals Court held that “husband” does not solely mean a male marriage partner, but rather the statute applies to similarly situated same-sex couples.  The Court went on to say that under the statute, there was no requirement that the parties be married at the time of conception, as the statute plainly states “[a]ny child born,” not “any child conceived.”  The Court therefore concluded that Ms. Ramirez was, in fact, the child’s parent because the child was born during the marriage.  The Appeals Court held that, “when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage.”

This holding should be considered carefully for what it provides and not read over-broadly.  It has been practice in Massachusetts since 2004 (when same-sex marriage was legalized) that when a child is born to one of the parties in a same-sex marriage, the spouse is listed as the second-parent on the child’s birth certificate.  Despite each parent being listed on the birth certificate, attorneys advise these couples to proceed with a second parent adoption.  Why?  The reason is that states that do not recognize a same-sex marriage as legal may very well also not recognize parentage that flows solely out of the marital status.  In the mobile society in which we live, a same-sex couple is well advised to cover all of the bases by proceeding with the second parent adoption. The holding in Della Corte v. Ramirez, while important for making clear the status of children born during same-sex marriages and the rights of both parents, does not protect the non-biological parent from what may happen outside of Massachusetts.  Until all of the states recognize same-sex marriages, second-parent adoptions remain advisable.