But nothing in Massachusetts statutory law — written before same-sex marriage was legalized — specifically addresses children born to unmarried gay parents.
Case law made by Massachusetts courts, however, has recognized the rights of unmarried same-sex couples to jointly adopt children.
Partanen’s lawyers argue she and Gallagher presented themselves publicly and to family and friends as the parents and shared equally in parenting responsibilities. They say the Massachusetts Legislature passed the law to protect children born to all unmarried couples, including children who lack a genetic relationship with one parent.
“Two women must also be included within the scope of unmarried adults who have children together,” they argue in their legal brief.
More than 35 states confer parentage on spouses who consent to assisted reproductive technology. Seven of those states and the District of Columbia give legal parentage to the person who consents to the procedure with the intent to parent the resulting child, without regard to marital status, according to fertility associations and attorneys who submitted written arguments supporting Partanen.
Court rulings in some states have recognized the parental rights and obligations of unmarried people without a genetic link to the children they agree to have.
Partanen is being represented by GLBTQ Legal Advocates & Defenders, the same group that brought the lawsuit that led to same-sex marriage in Massachusetts.
GLAD lawyers argue that barring same-sex couples from receiving the protections of the laws for their children “raises serious constitutional questions of sex and sexual orientation discrimination.”
Gallagher, however, says the dispute between her and Partanen is being wrongly depicted as a gay-rights case.
“GLAD does fight for equality (for gay people), but in this case, they’re asking for more than a heterosexual would get,” Gallagher said.
Gallagher’s lawyer, Jennifer Lamanna, said Partanen is trying to obtain legal rights she would be entitled to only if she had married Gallagher, adopted the children or filed a voluntary acknowledgment of paternity.
“She never took steps to do that,” Lamanna said.
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