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MA Supreme Judicial Court Clarifies Legal Rights of Same-Sex Parents in Assisted Reproduction Arrangements with a Known Donor

Parents Not Required to Notify a Known Donor of a Petition for Adoption

The Massachusetts Supreme Judicial Court (SJC) issued a ruling in Adoption of a Minor clarifying that a married same-sex couple are the only legal parents of children born into their marriage using known donor sperm and that the couple need not notify such a donor of a subsequent adoption.

The case, brought by Patience Crozier of Kauffman Crozier LLP, concerned a married same-sex couple who filed a petition for adoption of their son, who was conceived through in vitro fertilization using a known sperm donor. The couple sought the joint adoption not to establish their parentage but to ensure recognition of their parentage in states outside of Massachusetts that may not recognize their marriage or the non-biological mother’s parentage.

The Probate Court acknowledged the couple as the child’s legal parents, but denied their motion to proceed with the adoption without notification to the known donor, pending an answer from a higher court on the question of “whether the lawful parents of a child must give notice to the known biological father/sperm donor.”

In its ruling, the SJC reiterated that Massachusetts law recognizes that the spouse of “[a]ny child born as a result of artificial insemination with spousal consent is considered to be the child of the consenting spouse” and found that, as the lawful parents, the couple had no more obligation to notify the donor of their petition for adoption than any other married couple who are intended parents using gamete donation.

“This ruling is a wonderful affirmation of the great diversity of families in the Commonwealth, which include significant numbers of children conceived through assisted reproduction,” said Crozier. “The SJC has provided clarity through its straightforward analysis of the statutes, and that will ensure uniformity in Massachusetts courts as well as stability and security for countless children and families.”

Nationally, one in eight married couples experiences fertility issues. Massachusetts leads the nation in the percentage of births involving ART. For example, in 2011, 4.5% of births in the Commonwealth involved ART. This ruling protects known donors, whose goal is to help couples achieve pregnancy, from parental obligations, and it secures the parent-child relationships of married couples who use donated gametes to conceive their children. Moving forward, this case means that married same-sex couples are treated the same as different-sex couples and that all children born via assisted reproduction to married couples are secure in their parentage.

“This decision aligns Massachusetts with the consensus of states that, in the context of ART, the consenting spouse or intended parent is the legal parent, and the sperm donor is not,” said Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, which submitted an amicus brief in support of the petitioners with assistance from Boston College Law Professor Kari Hong. “In short, a donor, known or unknown, is a donor and not a parent,” Bonauto added, “Now, couples who want to use a known sperm donor can be secure in their parentage, and the donors can be secure in their non-parentage. This is a win for everyone.”

Amici joining GLAD’s brief in support of the petitioners included:
American Academy of Adoption Attorneys; American Academy of Assisted Reproductive Technology Attorneys; American Society for Reproductive Medicine; Boston IVF; IVF New England; Lambda Legal Defense and Education Fund, Inc.; Massachusetts LGBTQ Bar Association; National Center for Lesbian Rights; New England Fertility Society; Path2Parenthood; RESOLVE: The National Infertility Association; and RESOLVE New England.

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GLAD attorney John Ward became the first openly gay attorney to argue at the Supreme Court.

The journey toward Boston Pride marching in the 2015 St. Patrick’s Day Parade has been long – remember when Major George F.H. Murray of the Ninth Regiment of the Army was the first chief marshal of the parade after General George Washington and the Continental Army succeeded in causing British troops to end their occupation of Boston? – About that long. More realistically, the first official challenge to the ban of LGBT groups from the parade came from GLAD over 17 years ago in the early 1990’s on behalf of the Irish-American Gay, Lesbian, Bisexual Group of Boston (GLIB). With many members of GLIB being of 100% Irish descent, they grew tired of the exclusion and with the help of GLAD, filed for a court order to allow them to march in the St. Patrick’s Day Parade for the first time in 1992. They continued this run through 1993, obtaining another court order for inclusion, until 1994 when the Veteran’s Council in charge of approving groups to march decided to cancel the parade outright, rather than allow GLIB to obtain a court order to march for the third year in a row. Pictured below, members of GLIB marching for the first time in the 1992 St. Patrick’s Day Parade:

After this extreme action to cancel the parade by the Veteran’s Council, GLIB and GLAD decided it was time to take the case to the Supreme Court. In early 1995, the Supreme Court issued its ruling reversing the seven previous wins in Massachusetts, and maintaining that the Veteran’s Council had the right to make this exclusion. Despite the loss, the case itself created a few milestones of its own. GLAD attorney John Ward became the first openly gay attorney to argue at the Supreme Court. The written decision was respectful in tone, and acknowledged that coming out and being out are expressive acts. GLIB’s fight also added to the discussion about identity and community; being who you are and being included. You can listen to the full story of GLIB and the Supreme Court in this GLAD Podcast:

Now, 20 years after the Supreme Court ruling – LGBT groups are in the parade! But it is not without some slight discomfort that some groups be let in while others are still excluded. A small step has been made, this time by a cultural shift in understanding rather than a long-winded legal battle, but it may just be the stepping stone to actual full equality and inclusion. The LGBT group OutVets actually made an appearance in the St. Patrick’s Day Parade in 2014, which was cheered on by Mayor Marty Walsh, who boycotted the parade in 2013 as a result of the exclusion. This year OutVets was joined by Boston Pride as the two groups given permission to march. This year is a great step forward in the ongoing efforts for full inclusion. For more of that history, see the in depth look in the Rainbow Times at the history of the alternative St. Patrick’s Peace Parade, organized for many years by Veteran’s for Peace (VFP) and inclusive of the LGBT community. Pictured below, a photo of the Veteran’s for Peace marching in the 2014 St. Patrick’s Peace Parade.

Hopefully, eventually any group LGBT related or not, will be able to take part in Boston’s St. Patrick’s Day celebration of heritage, remembrance, and fighting alongside one another for our place in this world, despite differences in our identities. Correction: an earlier version of this post stated that VFP held the St. Patrick’s Peace Parade this year, but that event was not held.

GLAD’s Statement on the Passing of Former Boston Mayor Tom Menino

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We are saddened to hear of the passing today of long-time Boston Mayor Tom Menino, who was a tremendous ally to the LGBT community.

It is hard to imagine that LGBT people and people living with HIV could have had a more devoted and rock-solid friend than Mayor Menino. His policies and positions were all aimed at ensuring not only that LGBT people were welcome in Boston, but that they could participate fully and equally in the life of our city.

From his refusal to march in the St. Patrick’s Day Parade, to being an early champion of domestic partner health insurance benefits and then an early and steadfast supporter of marriage equality; from leading Boston to become one of the few cities in Massachusetts to implement needle exchanges, to ensuring the school committee adopted safe schools programs for LGBT youth, every LGBT person in the city knew that the Mayor was with you.

He gave voice to our inclusion in the city, and was at the same time an inspiration to our community. And he did all these things at a time when there was less acceptance and it was much less popular than it is today to support the LGBT community.

In addition to his policies and positions, the Mayor was the kind of person that when he saw a problem or injustice or a person suffering, he stepped in to create solutions. For instance, in 2001, Belynda Dunn, a beloved HIV educator in the African American community was in need of a liver transplant to save her life. Insurance companies wouldn’t cover transplants for HIV positive people at the time, claiming they were experimental. While GLAD pursued the issue in court, the Mayor stepped up to create a fund to pay for the transplant, until we were able to change the law. That was the kind of extraordinary thing Mayor Menino did.

All of us at GLAD, and all of us in the community, will miss the Mayor and his unique style of leadership and inspiration. Our thoughts and prayers are with his family and loved ones at this difficult time.

Bradford v. Group Insurance Commission

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Update November 14, 2014 – Victory! This matter has been settled and Bradford will now be able to receive coverage for gender reassignment surgery.

GLAD has filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) on behalf of a state employee who has been denied coverage for gender transition-related health care.

Kathy Bradford, who, as a state employee, receives health insurance through the Group Insurance Commission, has been denied coverage for gender reassignment surgery despite statements from her doctors that the surgery is medically necessary treatment for her gender dysphoria.

The complaint alleges discrimination in denial of medically-necessary treatment and differential employment benefits, on the basis of sex and gender identity.

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Gay & Lesbian Advocates & Defenders (GLAD) filed suit today against the Social Security Administration (SSA) in U.S. District Court for the District of Rhode Island, charging SSA with wrongfully denying survivor benefits to 56-year-old Deborah Tevyaw after the death of her wife, Patricia Baker. The complaint can be read here on GLAD’s website.

Deb was married in Massachusetts in 2005 to Pat, a career Rhode Island corrections officer. Pat was diagnosed with stage 4 lung cancer and died in August 2011. Her final months were spent lobbying for marriage equality in Rhode Island, and trying to ensure Deb’s financial security. But SSA has repeatedly denied survivor benefits to Deb, who as a result has been living on virtually no income for more than three years.

“More than a year after the demise of the Defense of Marriage Act, Social Security’s misguided and mistaken application of the law is causing serious harm and distress to people like Deb,” said Janson Wu, GLAD Senior Staff Attorney.

“I’ve lost my wife and my best friend, and Social Security has made that so much worse by telling me that in their eyes, I was not Pat’s wife,” said Deb. “Not only is that hurtful and insulting, it has meant that I am living in poverty. I am not looking for a handout; this is money that Pat earned through hard work.”

Despite Deb’s valid marriage to Pat, Social Security initially refused in 2012 to provide Deb disabled widow’s benefits and a lump sum death payment, citing the Defense of Marriage Act (DOMA). While Deb appealed this denial, she was living on a disability income of only $723 a month. She was forced to sell her home of 38 years, leaving her destitute and dependent on friends and family.

After DOMA was struck down by the U.S. Supreme Court in June 2013, SSA continued to deny Deb’s appeal, claiming that the state of Rhode Island would not have recognized Deb and Pat’s marriage at the time of Pat’s death.

“There is no doubt in our minds that Rhode Island would have recognized Pat and Deb as validly married at the time of Pat’s death in 2011, and that Social Security’s reading of the law is just plain wrong,” said Wu.

Cote v. Walmart

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On May 15, 2017, a federal judge approved the $ 7.5 million class action settlement between Walmart and former Walmart associate Jacqueline Cote, that challenged Walmart’s lack of health insurance benefits for same-sex spouses of Walmart associates prior to 2014. Read more.

GLAD and co-counsel Washington Lawyers’ Committee, Peter Romer-Friedman of Outten & Golden LLP filed the class action complaint against Walmart, charging the retailer with discriminating against employees who were married to same-sex spouses by denying their spouses health insurance benefits.

On December 22, 2016, the District Court presiding over the class action lawsuit granted preliminary approval of a Settlement, and directed the parties to send notice to Settlement Class Members so that they can learn about the Settlement and have the opportunity to submit claims to receive payments.

Notice was provided to class members on January 23, 2017. Read more

To receive payments under the Settlement, Settlement Class Members were directed to file claims with the Settlement Administrator no later than March 20, 2017.

This class action lawsuit flowed from a complaint GLAD filed on Jackie’s behalf with the Equal Opportunity Employment Commission (EEOC) in September 2014. On January 29, 2014, the EEOC issued a final determination stating that Walmart’s treatment of Jackie constituted unlawful sex discrimination. On May 29, 2015, the EEOC issued a right to sue letter.

In addition to GLAD, Outten & Golden LLP, and the Washington Lawyers’ Committee, Jacqueline Cote is represented by and Arnold and Porter LLP.

Diana Smithson and Jacqueline Cote. Photo: 777 Portraits Myrtle Beach, SC Download photo

Commonwealth v. Kelly

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GLAD has joined the Anti-Defamation League, MassEquality, The Lawyers’ Committee for Civil Rights and Economic Justice, South Asian Bar Association of Greater Boston, Massachusetts Black Lawyers Association, and Massachusetts LGBTQ Bar Association in an amicus brief urging the Massachusetts Supreme Judicial Court (SJC) not to add a “predominant” or “substantial” factor test to the state’s hate crime statue.

The brief was submitted in the case Commonwealth v. Kelly, which questions the standard for determining guilt under the state’s hate crimes statute. It asks the SJC to uphold the jury instructions given by the trial judge, which required proof that the defendants intentionally and deliberately targeted the victim because of his race, and argues that requiring that bias motive also be a “predominant” or “substantial” contributing factor would impede the law’s long standing effectiveness and weaken protections for vulnerable communities across the Commonwealth. (Excerpted from the New England ADL website. Read more).

The amicus brief was prepared by the law firm Cooley LLP in Boston.

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GLAD today launched a campaign to encourage the creation of more gay-straight alliances (GSAs) in middle schools across Massachusetts and in New England.

“Young people are coming out at a younger and younger age,” says Vickie Henry, director of GLAD’s Youth Initiative. “It’s critical to have resources in place to support them and to educate their peers, so they can go through coming out safely and in a positive way.”

GSAs Can Make It Better is a one-minute video created to be shared online and shown in schools, at conferences, and as part of workshops. It outlines the documented benefits of GSAs, including the role they play in cutting down on transphobic and homophobic remarks; helping transgender and gender non-conforming students feel safer; and educating teachers, administrators and students about LGBTQ issues.

The video and resources, including a primer on the right to form GSAs, can be viewed at www.GLADAnswers.org/GSA.

GLAD has partnered with Boston Alliance of LGBTQ Youth (BAGLY, Inc.), GLSEN Massachusetts, Greater Boston PFLAG, Hispanic Black Gay Coalition, the Massachusetts Commission on LGBTQ Youth, and True Colors: Out Youth Theater and the Theater Offensive to create the campaign.

LGBT middle school students are significantly more likely than their high school peers to experience verbal and physical harassment and assault, with 35.5% of middle school students reporting regular physical harassment compared to 21.4% of high school students. Yet while 52.6% of LGBT high school youth have access to a GSA, only 6.3% of LGBT middle school youth do.

Throughout the school year, GLAD will be making available online content that educates and encourages the creation of middle school GSAs. GLAD will also provide assistance to any students who are having difficulty forming a GSA due to their school administration’s resistance or who believe their school is not treating an existing GSA the same as any other club.

Anyone with questions about how to start a GSA or concerns that their school is not treating their GSA fairly is encouraged to contact www.GLADAnswers.org/GSA

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The MacArthur Foundation announced today that Mary L. Bonauto, Civil Rights Project Director for Gay & Lesbian Advocates & Defenders (GLAD), has been awarded a 2014 MacArthur Fellowship, sometimes referred to as a “genius grant.” The Fellowships are awarded annually to “talented individuals who have shown extraordinary originality and dedication in their creative pursuits and a marked capacity for self-direction.”

Watch the video profile of Mary Bonauto from the MacArthur Foundation

“We are thrilled for Mary and for the LGBT movement,” said Gary Buseck, GLAD’s interim executive director and longtime legal director. “Mary is without a doubt one of the most visionary and hardworking people in our movement, and at the same time one of the most genuinely modest. Not only is this award well-deserved recognition for Mary, but it’s an opportunity for us to highlight the movement for LGBT equality and all that remains to be done.”

“This award is a testament to the justice-seeking work of innumerable people all across the nation,” said Bonauto. “I deeply appreciate the Foundation’s vote of confidence in our movement’s work as we strive to remove barriers to LGBT people’s full participation in society. So many have given so much to bring us to this point – whether our courageous plaintiffs or people whose names history may never know – and every bit of it has mattered. This honor is an investment in a better future for all.”

Mary Bonauto started her work at GLAD in 1990. She has litigated widely in state and federal courts on issues of employment discrimination, free speech, civil rights, and family law. She is nationally recognized as an architect of the marriage equality movement, starting with her role in the 1999 case Baker v. State of Vermont, which led to the nation’s first civil union law.

She went on to become lead counsel in Goodridge v. Department of Public Health, the landmark case which resulted in Massachusetts becoming the first state where same-sex couples could legally marry, starting in May 2004. Goodridge opened the door to a decade of progress. Today same-sex couples can marry in 19 states and the District of Columbia, and the issue may be decided nationally by the U.S. Supreme Court in its 2014-2015 term. Bonauto and Buseck recently joined the legal team in the Utah case Kitchen v. Herbert, which is one of the cases that may be heard.

Bonauto also litigated two cases challenging the Defense of Marriage Act (DOMA), producing the first federal court rulings that DOMA is unconstitutional, and laying the groundwork for last year’s Supreme Court victory in United States v. Windsor, in which DOMA was struck down by the Court.

“When governments exclude same-sex couples from marrying, they impose an official taint of unworthiness and otherness on gay people and our relationships. Securing the freedom to marry has brought great joy and security for many, as well as a greater understanding of LGBT people’s common humanity. But marriage is not an endpoint,” said Bonauto.“We still have to create a world in which LGBT people are embraced, not just tolerated; where LGBT kids are fully supported in every part of their lives; where transgender people have full legal protections and access to healthcare; where HIV is eradicated; where elders don’t go back into the closet to get appropriate care, and so much more. Like others once denied rights and protections under law, we seek a world where we can all live, work and vote in our communities without being held back or singled out because of who we are. I am as committed as ever to our nation’s bedrock promises of liberty and equality for all.”

Bonauto is a graduate of Hamilton College and Northeastern University School of Law. She is a past co-chair of the Sexual Orientation and Gender Identity Committee of the American Bar Association, and serves on the Honorary Board of the Boston Chapter of the American Constitution Society.

To learn more about GLAD’s history and the challenges of the future, visit www.gladlaw.org. To learn more about the MacArthur awards and to see a video about Bonauto, visit www.macfound.org.

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Watch the video profile of Mary Bonauto from the MacArthur Foundation

To learn more about GLAD’s history and the challenges of the future, visit www.gladlaw.org. To learn more about the MacArthur awards and to see a video about Bonauto, visit www.macfound.org.