A Massachusetts statute provides, "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." But what if the birth mother is married to a woman, as has been possible in Massachusetts since May 2004 pursuant to the Mass. Supreme Judicial Court's decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003)? According to the Massachusetts Appeals Court, ruling on February 2, 2012, then the birth mother's wife is the legal parent of the child.
In this case, Gabriella Della Corte and Angelica Ramirez were partners who planned to have a child, and Della Corte became pregnant through donor insemination with Ramirez's assistance and consent. A few months later, the two women married, and thereafter the child was born. Both women were listed as parents on the birth certificate. The women's relationship deteriorated and they separated. Ramirez sought to retain joint legal custody of the child, which was granted by the court as part of a separation agreement.
Della Corte subsequently fought against joint legal custody, arguing that Ramirez was not biologically related to the child and thus could not assert parental rights. She relied on the statute quoted above, pointing out that Ramirez was not a father, and claimed that the trial judge erred by refusing to engage in a "best interests" analysis to determine whether joint custody was appropriate.
In rejecting Della Corte's claim, the Appeals court quoted a key statement from the Goodridge opinion: "statutory provisions concerning consanguinity or polygamous marriages shall be construed in a gender neutral manner," also mentioning a recent Appeals Court ruling involving the divorce of a same-sex couple, in which the court had applied a gender-neutral interpretation to the state's divorce statute, which has not been modified by the legislature to account for the fact that there are legal same-sex marriages in Massachusetts. (See Cerutti-O'Brien v. Cerutti-O'Brien, 77 Mass. App. Ct. 166 (2010).
The court specifically rejected Della Corte's argument that Ramirez could only have become a legal parent of the child through a second-parent adoption, again referring to Goodridge, in which the court pointed out that one of the disadvantages suffered by same-sex couples who were not allowed to marry was the time, effort and money involved in doing second-parent adoptions for a child who was born to couples in a relationship, implying, of course, that same-sex marriage would end this problem.
Della Corte also argued that the trial judge should have considered whether it was in the best interest of the child to continue the joint custody arrangement. Normally, once a joint custody arrangement is established, the court will not allow the arrangement to be reopened unless there is a "substantial and material change in circumstances." In this case, said the appeals court, the only change in circumstances was that the child grew older. Nothing else had change in any substantial or material way, and the guardian ad litem appointed by the court to represent the child's interest had concluded that the child had a good relationship with both mothers. Consequently, the trial court did not err in finding no change that would justify undertaking a new "best interests" analysis. The strong interest in "finality" in child custody cases also counseled against reopening the custody issue when nothing of significance had changed since the initial arrangement was agreed upon.
Attorneys in the case are Edward Foye for Della Corte and Dana Alan Curhan (with Honora A. Kaplan on the brief) for Ramirez.
Would this apply to adoption as well? That is, e.g. in NY married couples must adopt together. However, in many gay couples , even those married, only one parent adopts and then the other parent adopts through a second-parent adoption. This is especially true when the child is adopted from a country /state that does not allowed gay couples to adopt. In effect, one of the partners falsely claims to be single and files for adoption. Once that goes through the 2nd parent petitions for a second parent adoption which states that the other partner (even though married per Mass. or now NY) petitioned for adoption as a single person when in fact he/she was married and per NY law was not able to adopt as a single person but only as a couple as they were married.
Assuming an adoption is approved, my understanding is that a new birth certificate would be issue identifying the adoptive parents by the jurisdiction where the child was born. But this was the point of contention in recent litigation over Louisiana’s refusal to issue such a birth certificate for a same-sex couple who adopted a Louisiana-born child in New York. Louisiana took the position that under their laws same-sex couples have no legal family status and they would only put the name of one of the fathers on the substitute birth certificate of the child. The 5th Circuit Court of Appeals, ruling en banc, held that the refusal of state officials to place both names on the certificate was not justiciable in federal district court under the Full Faith and Credit Clause (a bizarre ruling), thus reversing a ruling by a 3-judge panel of the Circuit and the district judge and dismissing the case.
I can see how the question you posed would also be very pertinent for a same-sex couple who wants to adopt a child in South America or China or Russia, from a country that doesn’t allow unmarried couples to adopt and may not recognize their marriage. I’m not sure how that would turn out, since the place of birth has control over what goes on a birth certificate, even if an adoption takes place elsewhere. So you might have one member of the couple adopt overseas, and the second parent adopt in New York, but a NY court would have no authority to order a foreign government to issue a new birth certificate, and NY could not issue a birth certificate if the child was not born in NY.