In re Adoption of a Minor
Decision Date | 07 May 2015 |
Docket Number | SJC–11797. |
Citation | 471 Mass. 373,29 N.E.3d 830 |
Parties | ADOPTION OF A MINOR. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Patience Crozier, Cambridge, for the petitioners.
Kari Hong, of California, & Mary L. Bonauto & Vickie Henry, for American Academy of Adoption Attorneys & others, amici curiae, submitted a brief.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
The petitioners, J.S. and V.K., a married same-sex couple, filed a joint petition for adoption in the Probate and Family Court, seeking to adopt their son Nicholas.1 Nicholas was born to J.S. in 2014, during the petitioners' marriage. He was conceived through in vitro fertilization (IVF),2 using a known
sperm donor3 selected by J.S. and V.K., whose names appear on his birth certificate. The petitioners sought to adopt their son as a means of ensuring recognition of their parentage when they travel outside the Commonwealth, or in the event of their relocation to a State where same-sex marriage is not recognized.
we will not look to extrinsic evidence of legislative intent ‘unless a literal construction would yield an absurd or unworkable result.’ ” Adoption of Daisy, supra, quoting Boston Hous. Auth. v. National Conference of Firemen & Oilers, Local 3, 458 Mass. 155, 162, 935 N.E.2d 1260 (2010). If the meaning of the statutory language is not plain, we look to “the intent of the Legislature ascertained from all [the statute's] 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.” Garney v. Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 388, 14 N.E.3d 922 (2014), quoting Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934).
The notice requirements for any person whose consent is required under this provision are set forth in G.L. c. 210, § 4.5
By its plain language, G.L. c. 210, § 4, requires notice of a petition for adoption to be given only to those persons from whom written consent to the adoption must be obtained. See G.L. c. 210, §§ 2, 4. No notice is required for persons not expressly included in G.L. c. 210, § 2. See Petition for Revocation of a Judgment for Adoption of a Minor, 393 Mass. 556, 560, 471 N.E.2d 1348 (1984). “The statutory notice provision sets forth who is to be notified,” and a person who does not fit into one of the statutory categories “is not entitled to notice.” Id. Because G.L. c. 210, § 2, does not include the category of “sperm donor” among those from whom consent is required as a prerequisite to adoption, under the plain language of the statute, no notice to a sperm donor is required.
See Adoption of Daisy, supra at 77, 948 N.E.2d 1239, quoting Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126, 842 N.E.2d 926 (2006) ().
Thus, if the known sperm donor is entitled to notice of the petitioners' petition for adoption, the only potentially applicable category of persons to whom notice must be given under G.L. c. 210, § 2, is that of “lawful parent.” We turn, therefore, to consideration of the category of “lawful parent,” as that term is used in the statute, and whether it has any application to the known sperm donor here.
2. Lawful parent. In his reservation and report, the judge stated as an “undisputed fact[ ]” that J.S. and V.K. are Nicholas's lawful parents. As an initial matter, we agree that, pursuant to G.L. c. 46, § 4B, J.S. and V.K. are Nicholas's lawful parents, and that, as residents of the Commonwealth, they are not required to adopt their son in order to establish their parentage.6 “[A]ny child born as a result of artificial insemination with spousal consent is considered to be the child of the consenting spouse.” Hunter v. Rose, 463 Mass. 488, 493, 975 N.E.2d 857 (2012), citing G.L. c. 46, § 4B. We also understand G.L. c. 46, § 4B, which refers specifically to “artificial insemination,” to include parentage of a child born though the use of any assisted reproductive technology. See Okoli v. Okoli, 81 Mass.App.Ct. 371, 377, 963 N.E.2d 730 (2012) ( ). Therefore, lawful parentage, and its associated rights and responsibilities, is conferred by statute on the consenting spouse of a married couple whose child is conceived by one woman of the marriage, through
the use of assisted reproductive technology consented to by both women. See G.L. c. 46, § 4B. Because Nicholas was born to J.S., his biological mother, after an IVF procedure to which V.K., her spouse, consented, J.S. and V.K. are his lawful parents.
That conclusion, however, does not address whether, under G.L. c. 210, § 2, a known sperm donor also may be a “lawful parent” for purposes of the notice requirement.
In his reservation and report, the Probate and Family Court judge noted that “the statute does not differentiate between an anonymous sperm donor and a known sperm donor,” but stated that he was “not convinced” that “absent a determination by court, ... the known biological father/sperm donor is precluded from filing a subsequent action to establish his paternity in accordance with G.L. c. 215, § 6.”
We have observed previously, in dicta, that, although the adoption statute “does not comment on the [parental] rights and obligations, if any, of the [sperm donor] ... inferentially he has none.” R.R. v. M.H., 426 Mass. 501, 502, 509–510, 689 N.E.2d 790 (1998) ( ). As to a child of a marriage who is conceived via artificial insemination or IVF, as here, G.L. c. 46, § 4B, by its nature, contemplates that a third party must provide genetic material for the child's conception. Nonetheless, as is consistent with our paternity statutes and long-standing presumption of the legitimacy of marital children, see D.H. v. R.R., 461 Mass. 756, 760, 964 N.E.2d 950 (2012), and cases cited, G.L. c. 46, § 4B, confers legal parentage only upon the mother's consenting spouse, not the sperm donor. It is thus presumed that marital children have only two lawful parents: the biological mother and her spouse.
In certain contexts, however, we have concluded that there are circumstances in which a “putative father”7 may establish paternity, or claim at least some of the associated rights and obligations of parentage, where the child's mother was married to someone else at the time of the child's conception. See G.L. c. 209C, § 6 (a ) ( ). Where
the mother was married when the child was born, a putative father who is not the mother's spouse may establish paternity in one of two ways only: either through a voluntary acknowledgment of paternity executed by both parents, or through an adjudication of paternity by a court of competent jurisdiction. See Smith v. McDonald, 458 Mass. 540, 544, 941 N.E.2d 1 (2010).
A voluntary acknowledgment of paternity requires that the mother and her...
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...of her position that "artificial insemination" encompasses "in vitro fertilization," Appellee points to In re Adoption of a Minor, 471 Mass. 373, 29 N.E.3d 830 (2015), a decision out of the highest court in Massachusetts interpreting MGLA 46 § 4B, which is similar to OCGA § 19–7–21. That de......
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