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2016 年 10 月 4 日，马萨诸塞州最高司法法院 (SJC) 发布了 决定 在 帕尔塔宁诉加拉格尔案，宣布非亲生母亲卡伦·帕塔宁 (Karen Partanen) 可以成为她与前伴侣朱莉·加拉格尔 (Julie Gallagher) 抚养的两个孩子的合法父母。

“这项裁决对当代家庭来说是一次重大胜利，因为现代家庭的组成方式多种多样。对于那些不应该因为父母未婚或未使用辅助生殖技术而被剥夺父母抚养权的家庭的孩子来说，这尤其是一项胜利。”——格拉德民权联盟民权项目主任玛丽·博诺托

案件背景

Jo- 和 Ja- 是姐弟俩，现年分别为 7 岁和 4 岁，是 Karen Partanen 和 Julie Gallagher 的孩子。

Karen and Julie were a couple for nearly 13 years.  They met in Massachusetts, moved to Florida where they purchased a home together, and after a time decided to have children together using assisted reproduction.  Together they consented to the procedures, chose a donor, and underwent psychological evaluations. Karen first tried to become pregnant, but when she was unsuccessful, Julie became pregnant.  Karen even injected Julie with the semen for the conception of their second child.

他们的家人听到怀孕的消息欣喜若狂，还为这对夫妇举办了迎婴派对。从2008年“乔”出生的那一刻起，以及2012年“贾”出生的那一刻起，凯伦（她陪着朱莉在产房里）就是他们的“妈妈”，朱莉则是他们的“妈妈”。

When the children were born, Karen and Julie sent out birth announcements to friends and family. They raised the children together, sharing all of the normal parenting duties, from night feedings to medical decisions to financial support. They spent holidays and vacations together, and their families and community of friends saw them as a family unit. Jo and Ja saw both Julie’s and Karen’s parents as their grandparents – and were in turn regarded as grandchildren.  The children’s schools and medical providers knew both Karen and Julie as the parents.

For the time that Karen and Julie lived in Florida, adoption was not an option that was available to Karen to establish herself as a legal parent.  Florida’s ban on “homosexual” adoption (the last in the nation) was struck down by an intermediate appellate court in late 2010 and not appealed by the State.  Following this, there was a 长达数年的法律不确定性 其他中级上诉法院是否会同意该裁决，以及佛罗里达州最高法院对该禁令合宪性的立场如何，都引发了争议。这项收养禁令直到2015年才被废除。

In 2012, Karen and Julie moved from Florida to Massachusetts, where their relationship deteriorated, and they separated in 2014. At that point, Julie had refused Karen’s request to do an adoption.  In 2014, Karen filed a legal complaint seeking to be declared a “de facto” parent, so that she could see the children.

Karen filed a second complaint to be declared a full, legal parent under existing Massachusetts laws to secure a clear ruling acknowledging her role and her responsibilities to the children.  No appellate case has decided whether that is permissible, although the “paternity” (and “maternity”) law in place since 1986 serves as a backstop to declare the parentage of children whose parents have not married or adopted them.

That groundbreaking law was part of systemic efforts in Massachusetts to ensure that all children receive equal consideration regardless of the circumstances of their birth.   Since that law, Chapter 209C, imposes responsibility on people who have children through sexual reproduction, and its terms are general, Karen argues it is broad enough to include children born through assisted reproduction, as here.  Such a ruling would provide protections for both same-sex and different-sex couples who use assisted reproduction to create their families, which in Massachusetts is about 5% of all births.

虽然亲子关系案的法官驳回了卡伦的诉求， 促使这一呼吁， the judge in the de facto case granted Karen shared legal and physical custody and issued a child support obligation.  Gallagher is appealing that ruling because she wants to be the only decision maker.  A notice of appeal was filed at the Appeals Court in that case.

Julie has opposed Karen’s effort to become a legal parent to Jo and Ja.  Karen seeks stability and permanency for her children.  “I grew up in a large family, and that sense of family is what I want for my children,” said Karen.

When relationships change, families that have formed by love and intention, but without court involvement, can be vulnerable to legal attack, leading to this kind of high-stakes litigation.  Karen hopes that her children will be able to enjoy the same legal protections as other children so that they can continue to have the security of their two parents.

Karen 的代表律师包括 GLBTQ Legal Advocates & Defenders 的 Mary L. Bonauto、Kauffman Crozier LLP 的 Patience Crozier、Roberts & Sauer LLP 的 Elizabeth Roberts 以及 La Vita Law Center 的 Teresa Harkins La Vita。 

法律问题和争论

The focus of this case is to ensure that the two parents who brought Jo and Ja into the world remain their parents even though the adults have now separated.   Our nation decided long ago that children should not pay the price if their parents do not marry or take other steps to secure their legal relationships.  That same principle applies to the children in this case.

Like every state, Massachusetts has a comprehensive law in place to assure that children who are born to an unmarried couple may  have a determination of who are their legal parents, to ensure that both parents support them (when able), and that their custody and visitation be allocated based on the children’s best interests.

That law says that when unmarried parents have and raise a child together in their home and hold out the child as their child to the community, that the non-birth parent is presumed to be a legal parent regardless of biological connection.   That law should apply here.

This law was drafted before assisted reproduction became widely available, as now, for individuals and married and unmarried couples.   Since the law requires that a child be “born to” a couple for its protections to apply, this case asks that children born to an unmarried couple through assisted reproduction have the same protections as children born to an unmarried couple through sexual intercourse.  That would mean the court would determine their legal parentage, impose support obligations, and make an assessment of what custody and visitation arrangement is in their best interests for that couple.

Massachusetts also has a law that provides for immediate legal parentage upon both parents at the time of birth when a married couple has consented to have a child through assisted reproduction.  Karen argues that law should apply here, even though the parents are unmarried, because Massachusetts extends every protection available to children of married couples to children of unmarried couples to the extent possible.   The constitutional rights of non-marital children to equal treatment demand that same result.

2015年3月，初审法院驳回了“确认合法亲子关系的诉状”，该诉状也是本次上诉的焦点。该上诉由马萨诸塞州最高法院（SJC）直接审理。

该案于 2016 年 4 月 5 日在 SJC 进行了口头辩论.

凯伦的律师辩称，乔和贾是凯伦和朱莉通过辅助生殖技术所生，他们应该享有与其他非婚生子女同等的权利。尤其当父母悉心照料孩子并建立了牢固的亲子关系时，这一点尤为重要。

Karen 的律师提出以下论点：

  • 马萨诸塞州普通法第 209C 章 （MGLA）which is the law protecting all children born to unmarried parents, under which Karen has legal standing as a presumed “holding out” parent to make a claim for legal parentage.  Based on the circumstances of the children’s birth – mutually agreed-to assisted reproduction rather than sexual activity – there is no question that the child was their child and not the child of another possible person who could assert a claim for parentage.  The courts must construe the law in a gender-neutral fashion, which provides that a person is a presumed father if “while the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child.”
  • MGLA GL c. 46, 4B该法规定，经配偶同意，通过辅助生殖技术在婚姻关系中出生的子女，是夫妻双方的合法子女。该法规定，在双方同意的基础上，子女出生后即确立了亲子关系，无需任何血缘关系。
  • 公平:  If for any technical reason the statutes do not apply, the command that non-marital children not be disadvantaged relative to marital children requires the court to provide the parentage remedy through equity.  In addition, the brief notes that there is no reason that “de facto” parenthood should not include rights of custody, visitation and the obligation of child support when a child is brought into the world and raised by two loving adults.

Friend-of-the-court briefs have been submitted by: