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SJC-11797

ADOPTION OF A MINOR.

Middlesex. March 2, 2015. - May 7, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Adoption, Parent's consent. Parent and Child, Adoption. Minor, 

Adoption. Practice, Civil, Adoption. Notice. Consent.

Words, "Lawful parent."

Petition filed in the Middlesex Division of the Probate and 

Family Court Department on April 25, 2014.

A motion to proceed without further notice was heard by 

Jeffrey A. Abber, J., and a question of law was reported by him

to the Appeals Court.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Patience Crozier for the petitioners.

Kari Hong, of California, & Mary L. Bonauto & Vickie Henry, 

for American Academy of Adoption Attorneys & others, amici 

curiae, submitted a brief.

DUFFLY, J. The petitioners, J.S. and V.K, a married samesex couple, filed a joint petition for adoption in the Probate 
2

and Family Court, seeking to adopt their son Nicholas.1 Nicholas 

was born to J.S. in 2014, during the petitioners' marriage. He 

was conceived through in vitro fertilization (IVF),2 using a 

known sperm donor3 selected by J.S. and V.K., whose names appear 

on his birth certificate. The petitioners sought to adopt their 

son as a means of ensuring recognition of their parentage when 

they travel outside the Commonwealth, or in the event of their 

relocation to a State where same-sex marriage is not recognized.

The petitioners filed a motion to proceed with the adoption 

without further notice, arguing that, as Nicholas's lawful 

parents, they could consent to the adoption, no other consent 

was necessary, and no notice to any other person was required 

under G. L. c. 210, § 4. While recognizing the petitioners as 

Nicholas's legal parents in Massachusetts, a Probate and Family 

Court judge issued an interlocutory order denying the motion, 

and reserving and reporting to the Appeals Court the question 

"whether the lawful parents of a child must give notice to the 

known biological father/sperm donor pursuant to G. L. c. 210, 

 

1 A pseudonym.

2 In vitro fertilization (IVF) is "[a] procedure by which an 

egg is fertilized outside a woman's body and then inserted into 

the womb for gestation." Black's Law Dictionary 956 (10th ed. 

2014). Another form of assisted reproductive technology, 

artificial insemination, is "[a] process for achieving 

conception, whereby semen is inserted into a woman's vagina by 

some means other than intercourse." Id. at 135.

3 The sperm donor is the brother of V.K.
3

§ 2," in conjunction with their petition for adoption. We 

transferred the case to this court on our own motion to consider 

the correctness of the judge's ruling. See Roberts v. 

Enterprise Rent-A-Car Co. of Boston, Inc., 438 Mass. 187, 188 & 

n.4 (2002), citing O'Brien v. Dwight, 363 Mass. 256, 276 (1973).4 

We conclude that G. L. c. 210, § 2, does not require the lawful 

parents of a child to give notice of the petition for adoption 

to a known sperm donor, and, accordingly, answer the reported 

question, "No."

Discussion. Adoption of children in the Commonwealth is 

governed by G. L. c. 210 (adoption statute). "The law of 

adoption is purely statutory, Davis v. McGraw, 206 Mass. 294, 

297 (1910), and the governing statute, G. L. c. 210[], is to be 

strictly followed in all its essential particulars. Purinton v. 

Jamrock, 195 Mass. 187, 197 (1907)." Adoption of Tammy, 416 

Mass. 205, 210 (1993). We interpret a statute by looking "first 

to its language as the 'principal source of insight into 

legislative intent.'" Adoption of Daisy, 460 Mass. 72, 76 

(2011), quoting Water Dep't of Fairhaven v. Department of Envtl. 

 

4 We acknowledge the amicus brief of the 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.
4

Protection, 455 Mass. 740, 744 (2010). "Where the meaning of 

the language is plain and unambiguous, we will not look to 

extrinsic evidence of legislative intent 'unless a literal 

construction would yield an absurd or unworkable result.'" 

Adoption of Daisy, supra, quoting Boston Hous. Auth. v. National 

Conference of Firemen & Oilers, Local 3, 458 Mass. 155, 162 

(2010). If the meaning of the statutory language is not plain, 

we look to "the intent of the Legislature ascertained from all 

[the statute's] words construed by the ordinary and approved 

usage of the language, considered in connection with the cause 

of its enactment, the mischief or imperfection to be remedied 

and the main object to be accomplished." Garney v. 

Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 388 

(2014), quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934).

1. Notice requirement. The adoption statute requires the 

written consent of certain persons before a decree of adoption 

may issue. Under G. L. c. 210, § 2,

"[a] decree of adoption shall not be made . . . 

without the written consent of the child to be adopted, if 

above the age of twelve; of the child's spouse, if any; of 

the lawful parents, who may be previous adoptive parents, 

or surviving parent; or of the mother only if the child was 

born out of wedlock and not previously adopted."

The notice requirements for any person whose consent is required 

under this provision are set forth in G. L. c. 210, § 4.5

 

5 General Laws c. 210, § 4, provides, in part:
5

By its plain language, G. L. c. 210, § 4, requires notice 

of a petition for adoption to be given only to those persons 

from whom written consent to the adoption must be obtained. See 

G. L. c. 210, §§ 2, 4. No notice is required for persons not 

expressly included in G. L. c. 210, § 2. See Petition for 

Revocation of a Judgment for Adoption of a Minor, 393 Mass. 556, 

560 (1984). "The statutory notice provision sets forth who is 

to be notified," and a person who does not fit into one of the 

statutory categories "is not entitled to notice." Id. Because 

G. L. c. 210, § 2, does not include the category of "sperm 

donor" among those from whom consent is required as a 

prerequisite to adoption, under the plain language of the 

statute, no notice to a sperm donor is required. See Adoption 

of Daisy, supra at 77, quoting Commissioner of Correction v. 

Superior Court Dep't of the Trial Court for the County of 

Worcester, 446 Mass. 123, 126 (2006) ("We do not read into the 

statute a provision which the Legislature did not see fit to put 

there, nor add words that the Legislature had an option to, but 

chose not to include").

Thus, if the known sperm donor is entitled to notice of the 

 

"If the written consent required by [G. L. c. 210, 

§ 2,] is not submitted to the court with the petition, the 

court shall, except where the court under [G. L. c. 210, 

§ 3,] has determined that such consent and notice is not 

required, order notice by personal service upon the 

parties . . . ."
6

petitioners' petition for adoption, the only potentially 

applicable category of persons to whom notice must be given 

under G. L. c. 210, § 2, is that of "lawful parent." We turn, 

therefore, to consideration of the category of "lawful parent," 

as that term is used in the statute, and whether it has any 

application to the known sperm donor here.

2. Lawful parent. In his reservation and report, the 

judge stated as an "undisputed fact[]" that J.S. and V.K. are 

Nicholas's lawful parents. As an initial matter, we agree that, 

pursuant to G. L. c. 46, § 4B, J.S. and V.K. are Nicholas's 

lawful parents, and that, as residents of the Commonwealth, they 

are not required to adopt their son in order to establish their 

parentage.6 "[A]ny child born as a result of artificial 

insemination with spousal consent is considered to be the child 

of the consenting spouse." Hunter v. Rose, 463 Mass. 488, 493 

 

6 Pursuant to G. L. c. 46, § 4B, "[a]ny 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." We read this language to mean 

that, where a married woman is artificially inseminated, and her 

spouse consents to such insemination, the resulting child is the 

legal child of both spouses. See Hunter v. Rose, 463 Mass. 488, 

492-493 (2012) (recognizing as marital children in Commonwealth 

two children of same-sex couple, conceived through assistive 

reproductive technology and born into California domestic 

partner relationship); Della Corte v. Ramirez, 81 Mass. App. Ct. 

906, 907 (2012), citing Goodridge v. Department of Pub. Health, 

440 Mass. 309 (2003) ("We do not read 'husband' to exclude samesex married couples, but determine that same-sex married 

partners are similarly situated to heterosexual couples in these 

circumstances"); G. L. c. 4, § 6, Fourth ("words of one gender 

may be construed to include the other gender and the neuter").
7

(2012), citing G. L. c. 46, § 4B. We also understand G. L. c. 

46, § 4B, which refers specifically to "artificial 

insemination," to include parentage of a child born though the 

use of any assisted reproductive technology. See Okoli v. 

Okoli, 81 Mass. App. Ct. 371, 377 (2012) (concluding that G. L. 

c. 46, § 4B, is applicable to IVF procedures). Therefore, 

lawful parentage, and its associated rights and 

responsibilities, is conferred by statute on the consenting 

spouse of a married couple whose child is conceived by one woman 

of the marriage, through the use of assisted reproductive 

technology consented to by both women. See G. L. c. 46, § 4B. 

Because Nicholas was born to J.S., his biological mother, after 

an IVF procedure to which V.K., her spouse, consented, J.S. and 

V.K. are his lawful parents.

That conclusion, however, does not address whether, under 

G. L. c. 210, § 2, a known sperm donor also may be a "lawful 

parent" for purposes of the notice requirement. In his 

reservation and report, the Probate and Family Court judge noted 

that "the statute does not differentiate between an anonymous 

sperm donor and a known sperm donor," but stated that he was 

"not convinced" that "absent a determination by [an appellate] 

court, . . . the known biological father/sperm donor is 

precluded from filing a subsequent action to establish his 

paternity in accordance with G. L. c. 215, § 6."
8

We have observed previously, in dicta, that, although the 

adoption statute "does not comment on the [parental] rights and 

obligations, if any, of the [sperm donor] . . . inferentially he 

has none." R.R. v. M.H., 426 Mass. 501, 502, 509-510 (1998) 

(concluding that surrogacy agreement between plaintiff father, 

who had donated sperm, and defendant mother, who had agreed to 

act as surrogate and then changed her mind during pregnancy, was 

unenforceable). As to a child of a marriage who is conceived 

via artificial insemination or IVF, as here, G. L. c. 46, § 4B, 

by its nature, contemplates that a third party must provide 

genetic material for the child's conception. Nonetheless, as is 

consistent with our paternity statutes and long-standing 

presumption of the legitimacy of marital children, see D.H. v. 

R.R., 461 Mass. 756, 760 (2012), and cases cited, G. L. c. 46, 

§ 4B, confers legal parentage only upon the mother's consenting 

spouse, not the sperm donor. It is thus presumed that marital 

children have only two lawful parents: the biological mother 

and her spouse.

In certain contexts, however, we have concluded that there 

are circumstances in which a "putative father"7 may establish 

paternity, or claim at least some of the associated rights and 

obligations of parentage, where the child's mother was married 

 

7 A putative father is an "alleged biological father." 

Black's Law Dictionary 725 (10th ed. 2014).
9

to someone else at the time of the child's conception. See 

G. L. c. 209C, § 6 (a) (for child born during marriage or within 

300 days after termination of marriage, husband is presumed to 

be father of child and must be joined in any paternity action). 

Where the mother was married when the child was born, a putative 

father who is not the mother's spouse may establish paternity in 

one of two ways only: either through a voluntary acknowledgment 

of paternity executed by both parents, or through an 

adjudication of paternity by a court of competent jurisdiction. 

See Smith v. McDonald, 458 Mass. 540, 544 (2010).

A voluntary acknowledgment of paternity requires that the 

mother and her spouse sign an affidavit denying that the spouse 

is the child's father; the putative father and the mother must 

then sign a notarized acknowledgment of parentage stating that 

they are the parents of the child. These documents must be 

filed with the court or the registrar of vital records. See 

G. L. c. 209C, § 11 (a); D.H. v. R.R., supra at 761-762. A 

putative father also may file a complaint in equity in the 

Probate and Family Court, seeking to establish paternity. Where 

the mother was married to someone else at the time of the 

child's birth, a putative father may "establish paternity 

[through adjudication] only if he has a substantial relationship 

with the child . . . and alleges he is the child's biological 
10

father" (citation omitted).8 D.H. v. R.R., supra at 763. See 

C.C. v. A.B., 406 Mass. 679, 691 (1990) (requiring putative 

father to demonstrate, by clear and convincing evidence, 

"substantial parent-child relationship with the child" in order 

 

8 A sperm donor, although a genetic parent meeting the 

definition of a "putative father," "should not be treated as a 

legal parent." Kindregan, Collaborative Reproduction and 

Rethinking Parentage, J. Am. Acad. Matrimonial Lawyers 43, 48 

(2008). The reality today is that families take many different 

forms, and we recognize that a genetic connection "between 

parent and child can no longer be the exclusive basis for 

imposing the rights or duties of parenthood." Id. at 60. As 

commentators suggest, see id. at 47-50, the better view is that 

a sperm donor may assert parentage only where he donates "sperm 

for, or consents to, assisted reproduction . . . with the intent 

to be the parent of [the] child." Uniform Parentage Act § 703 

(2002). Indeed, the Uniform Parentage Act presumes that a sperm 

donor is not a parent of a child conceived by means of assisted 

reproduction. See Uniform Parentage Act § 702 (2002) 

(commenting that sperm donor cannot sue to establish parental 

rights). In the circumstances here, the sperm donor clearly 

donated the sperm with the intent that J.S. and V.K be the 

child's legal parents; a potential change of heart, years hence, 

would not alter that conclusion.

Moreover, to bring a claim in equity to establish paternity 

requires establishing a "substantial parent-child relationship" 

between the putative father and the child. See C.C. v. A.B., 

406 Mass. 679, 690 (1990). In the context of assisted 

reproductive technology, a putative father also may be a 

biological family member of one of the spouses; the petitioners 

indicate in their brief that choosing such a donor may allow a 

nonbiological parent to have a biological tie to the child. The 

existence of a relationship such as that of an uncle, cousin, or 

other family member, however, when coupled with being a sperm 

donor, does not itself give rise to a "substantial parent-child 

relationship." See id. at 689. Contrast Youmans v. Ramos, 429 

Mass. 774, 776, 782 (1999) (characterizing maternal aunt's 

relationship with child to be "substantial mother-daughter 

relationship" where aunt was sole caretaker for child; child 

learned to walk, talk, and read while in aunt's care; aunt 

oversaw all medical care, schooling, and extracurricular 

activities; and child referred to aunt as "mom").
11

for complaint for paternity of child of married mother to 

"proceed beyond preliminary stages"). Once a putative father 

successfully establishes his paternity and becomes the legal 

father of the child, the presumed father, the mother's spouse, 

logically, then, loses his legal parentage, either by consenting 

to a voluntary acknowledgment that he is not the child's father, 

or by a judgment of paternity. See D.H. v. R.R., supra at 761; 

Smith v. McDonald, supra at 544; C.C. v. A.B., supra at 690-691.

Even if, as the judge contemplated, a known sperm donor 

could bring an action in accordance with G. L. c. 215, § 6, to 

establish his paternity, nothing in G. L. c. 210, § 2, reflects 

any legislative intent that consent to adoption is required of 

one who may have a theoretical basis to attempt to establish 

parentage in the future. Indeed, the adoption statute does not 

require that notice of an adoption of a marital child be given 

to a putative father whose parental rights have not been 

determined. See Adoption of a Minor, 338 Mass. 635, 643-644 

(1959) (consent of putative father who was not lawful parent at 

time of adoption was not required). See also G. L. c 210, § 4A 

(requiring notice to be given only to putative fathers of 

children born out of wedlock).

In Adoption of Tammy, 416 Mass. 205, 213 n.5 (1993), a case 
12

with facts similar to those here,9 we noted that the sperm donor 

provided his written consent to a joint adoption, "[a]lthough 

not required by the statute." Here, following the plain and 

unambiguous language of the adoption statute, see Adoption of 

Daisy, 460 Mass. 72, 77 (2011), we make explicit the conclusion 

reached implicitly in Adoption of Tammy, supra. We will not 

extend the notice requirements of G. L. c. 210, § 4, beyond the 

enumerated categories of persons whose consent was required by 

the Legislature under G. L. c. 210, § 2. See Adoption of Tammy, 

supra at 210.

Conclusion. Because G. L. c. 210, § 2, does not require 

the lawful parents of a child to give notice of the petition for 

adoption to a known sperm donor, we answer the reported 

question, "No." The order denying the petitioners' motion to 

proceed with the adoption without further notice is reversed. 

The matter is remanded to the Probate and Family Court for 

further proceedings consistent with this opinion.

So ordered.

 

9 In that case, a same-sex couple decided to have a child, 

and one spouse conceived through IVF using the sperm of a known 

donor, who was the cousin of the other spouse. Adoption of 

Tammy, 416 Mass. 205, 207 (1993).