Reproductive technology and the phenomena of countless same-sex couples having children together have resulted in new classes of parents and children with cutting-edge legal issues. Our courts are called upon to revisit traditional definitions of who is a parent and has rights or responsibilities related to a child because the legislative process has not caught up with the realities of today's modern families.
At times, such as in the recent case of T.F. v. B.L., 442 Mass. 522 (2004), this results in great controversy over the extent of the Probate Court's power to "fill in the blanks." In T.F. v. B.L., a divided Supreme Judicial Court declined to impose a child support obligation on the nonbiological "parent" in a lesbian couple who agreed to have a child with her partner. This case is important as the most recent discussion of the scope of the Probate Court's equity powers to protect children, as well as for its implications for other children born through alternative insemination who may fall outside the existing statutory scheme.
Analysis of T.F. v. B.L.
The T.F. majority opinion, written by Justice Judith Cowin and joined by Justices Sosman, Cordy and Spina, adopted the factual findings made by the probate judge. Id. at 523-26. T.F. and B.L. were a couple from 1996 to 2000. T.F. had long wanted to have a child, but did not want to have a child alone. B.L. had consistently said that she did not want a child, but one day called T.F. at work and told her that she had changed her mind. Following that discussion, T.F. and B.L. embarked on a joint course of conduct to have a child that ultimately ended in T.F.'s pregnancy. The couple jointly considered alternatives of adoption, foster parenting, whether B.L. should be the birth mother rather than T.F. and who to use as the sperm donor. They jointly selected the sperm donor and paid for the costs of the insemination out of joint funds. T.F. became pregnant in December 1999, but their relationship deteriorated. They separated in May 2000 and T.F. gave birth to a baby boy in July 2000. B.L. sent pictures of the baby to friends referring to the baby as "my wonderful, beautiful boy." B.L. refused to pay child support, however, because she was angry at T.F. The probate court judge framed the legal issue as whether "'parenthood by contract is the law of Massachusetts.'" Id. at 523. The SJC granted direct appellate review.
In spite of the phrasing of the question reported by the Probate Court, the biological mother, T.F., did not argue on appeal that an agreement to become a parent, per se, should be recognized. Instead, she argued that: (1) an individual who intended and agreed to bring a child into the world and be his parent must, once that agreement has been relied upon to the point of a pregnancy, be held to the responsibilities of parenthood through the Probate Court's equity powers; and (2) an agreement to bring a child into the world necessarily carries with it an enforceable implied promise to support the child.
The SJC focused on the question reported by the judge and found that B.L. had made an agreement "to undertake the responsibilities of a parent in consideration of the plaintiff's conceiving and bearing a child." Id. at 527. But, relying on A.Z. v. B.Z., 431 Mass. 150 (2000), the SJC held that such a contract is unenforceable because it is against public policy. Id. at 528-30. A.Z. involved a woman who tried to enforce a written agreement executed during the marriage that would have permitted her to use frozen embryos, although her former husband objected to becoming a father . In A.Z., the SJC held that "forced procreation is not an area amenable to judicial enforcement." Id. at 160. In T.F., the SJC rejected the argument that A.Z. was distinguishable because B.L. did not voice any objection to the couple's agreement until T.F. was already pregnant.
The SJC relied upon the general principles of A.Z. that "the decision to become, or not to become, a parent is a personal right of 'such delicate and intimate character that direct enforcement … by any process of court should never be attempted.'" T.F., 413 Mass. at 529-30, quoting A.Z., 431 Mass. at 162. The SJC also rejected T.F.'s argument that B.L's agreement to parent necessarily implied a promise to support the child who was born as a result. Id. at 530-31. Discussing general contract principles, the court found there was no evidence of a "specific promise to provide child support separate and apart from the implied agreement to create a child." Id. at 530.
Finally, the SJC rejected T.F.'s argument that where there is a gap in the statutory scheme, B.L. should be held to an obligation to support the child she brought into the world through equity. Id. at 531-34. The SJC reasoned that: (1) the legislature has created a comprehensive statutory scheme governing child support; (2) B.L. is not a parent of the child under any statutory provision; (3) equity cannot be used to create a duty of child support where the law does not recognize a parent-child relationship; and (4) the court would not fill a gap in the statutory scheme by "legislating an outcome that suits us." Id. at 532-33. Articulating a narrower view of equity than in other recent child related cases, the SJC concluded that "[e]quity is not an all-purpose judicial tool by which the 'right thing to do' can be fashioned into a legal obligation possessing the legitimacy of legislative enactment." Id.
Justice Greany's dissent, joined by Chief Justice Marshall and Justice Ireland, agreed with the majority that parenthood by contract is not the law of Massachusetts. Id. The dissent, however, found an implied promise by B.L. to support the child because "[a] person cannot participate, in the way the defendant did, in bringing a child into the world, and then walk away from a support obligation." Id. at 535-36. The dissent found T.F.'s "resort to the equity jurisdiction [of the court] is entirely appropriate." Id. at 536. The dissent pointed to: (1) a number of statutes that show legislative recognition that parenting can be based on consent rather than biology; (2) the American Law Institute's Principles of the Law of Family Dissolution at Section 3.03 that endorses a support obligation based on agreement to parent a child; and (3) significant precedent using equity to "decid[e] many specific and complex child-related issues that have not been foreseen by statute." Id. at 536-38. "The child," Justice Greany concluded, "may have been abandoned by the defendant, but he should not be abandoned by the court." Id. at 540.
As more planned children are born to couples where only one party has a biological tie to the child , T.F. is a clear setback for recognition of the concept of intended parenthood. In spite of this loss, however, it is important to emphasize the options that remain for children brought into the world under circumstances similar to the child in T.F. First, T.F. makes clear that an explicit promise to support a child will be enforceable. The SJC did not rule out theories of equitable estoppel where the underlying agreement is enforceable. Unmarried couples planning to have children through alternative insemination may want to consider such an agreement. Second, marriage is now an option for same-sex couples as a result of the SJC's decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003), holding that the commonwealth may not deny the protections and obligations of civil marriage to same-sex couples. A child born during the marriage of a same-sex couple should be regarded as the child of both spouses under General Laws chapter 46, section 4B. Finally, it is worth noting that individuals who are not legal parents but who have established a parental relationship with the child can assert parental rights as de facto parents. See E.N.O. v. L.M.M., 429 Mass. 824 (1999); Youmans v. Ramos, 429 Mass. 774 (1999). The gap in legal protections left by T.F. may be limited to unmarried couples who use alternative insemination to bring children into the world where the biological parent's partner does not establish a sufficient relationship with the child to create a parent-child relationship of any kind.
The SJC's decision in T.F. raises the question of the future viability of the Probate Court's equity jurisdiction to protect children in a wide range of contexts where there is no explicit statutory safeguard. As types of families have changed, without statutes recognizing these realities, the SJC has historically relied upon equity to ensure that children in these families are not left behind. See, e.g., Eccleston v. Bankosky, 438 Mass. 428 (2003) (imposing post-minority support obligation on noncustodial parent for child living with a guardian); Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 290 (2001) (recognizing that "reproductive advances have eliminated the necessity of having sexual intercourse in order to procreate," and permitting genetic parents to obtain prebirth order directing hospital at which gestational carrier was expected to deliver to designate them as parents on birth certificate); E.N.O., supra (recognizing visitation rights of de facto parent who has a parental relationship with a child but no biological tie to the child); Normand v. Barkei, 385 Mass. 851 (1982) (establishing right to visitation before enactment of chapter 209C).
It is true that the author of the majority decision in T.F., Justice Cowin, has consistently expressed her view that equity should not be used to fill gaps in the statutory scheme. See, e.g., Eccleston, supra at 441 (Cowin, J., dissenting). Nevertheless, the other three justices in the T.F. majority (Sosman, Cordy and Spina) supported the use of equity in Eccleston to impose an obligation for post-minority support for a child living with a guardian, where the relevant statute only addressed support for children living with a parent. Eccleston, supra at 434-36. Thus, T.F. should not be read as the end of the road for the utility of the Probate Court's equity jurisdiction to protect children.