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SJC-12018

KAREN PARTANEN vs. JULIE GALLAGHER.

Middlesex. April 5, 2016. - October 4, 2016.

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

Hines, JJ.1

Parentage. Statute, Construction.

Complaint in equity filed in the Middlesex Division of the 

Probate and Family Court Department on October 17, 2014.

A motion to dismiss was heard by Jeffrey A. Abber, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Mary Lisa Bonauto (Elizabeth A. Roberts, Teresa Harkins La 

Vita, Patience Crozier, & Joyce Kauffman with her) for the 

plaintiff.

Jennifer M. Lamanna for the defendant.

The following submitted briefs for amicus curiae:

C. Thomas Brown for Greater Boston Legal Services & others.

Emily R. Shulman, Brook Hopkins, & Adam M Cambier for 

American Academy of Assisted Reproductive Technology Attorneys & 

others.

 

1 Justices Spina, Cordy, and Duffly participated in the 

deliberation on this case prior to their retirements.
2

Abigail Taylor, Gail Garinger, Brittany Williams, & Andrea 

C. Kramer, Assistant Attorneys General, for the Attorney 

General.

Shannon Minter, of California, Marco J. Quina, & Emma S.

Winer for forty-two law professors & another.

LENK, J. In 2014, the plaintiff, Karen Partanen, filed a 

complaint in the Probate and Family Court seeking to establish 

legal parentage of two young children. The complaint alleged 

that she and the defendant, Julie Gallagher, had been in a 

committed, nonmarital relationship between 2001 and 2013. Using 

in vitro fertilization, and with Partanen's "full 

acknowledgment, participation, and consent," Gallagher gave 

birth to the two children. Thereafter, Partanen and Gallagher 

represented themselves publicly as the children's parents, and 

jointly raised the children until their 2013 separation. On the 

basis of these allegations, Partanen's complaint sought a 

declaration of parentage pursuant to, among other things, G. L. 

c. 209C, § 6 (a) (4). That statute provides that "a man is 

presumed to be the father of a child" born out of wedlock if 

"he, jointly with the mother, received the child into their home 

and openly held out the child as their child." Concluding that 

Partanen could not be deemed a presumed parent under G. L. 

c. 209C, § 6 (a) (4), because it was undisputed that she was not 

the children's biological parent, a judge of the Probate and 

Family Court dismissed the complaint for failure to state a 
3

claim upon which relief can be granted. See Mass. R. Dom. Rel. 

P. 12(b)(6).

In addressing Partanen's claims on direct appellate review, 

we consider the question whether a person may establish herself 

as a child's presumptive parent under G. L. c. 209C, 

§ 6 (a) (4), in the absence of a biological relationship with 

the child. We conclude that she may. We conclude further that, 

here, the assertions in Partanen's complaint are sufficient to 

state a claim of parentage under G. L. c. 209C (statute). 

Therefore, we reverse the judgment of dismissal and remand the 

matter to the Probate and Family Court for further proceedings.2

1. Background. The facts are largely undisputed. The 

following facts are drawn from the complaint, which we take as 

true in reviewing a dismissal under Mass. R. Dom. Rel. 

P. 12(b)(6), with certain minor, undisputed details drawn from 

elsewhere in the record. See Schaer v. Brandeis Univ., 432 

Mass. 474, 477 (2000).

 

2 Because we conclude that Karen Partanen's complaint is 

sufficient to establish parentage under G. L. c. 209C, § 6, and 

should not have been dismissed, we do not address her claims 

that she is entitled to a declaration of parentage under G. L. 

c. 46, § 4B (presumptive parentage of child born through 

artificial reproductive technology to married couple), or, 

alternatively, under G. L. c. 215, § 6 (court's equitable power 

to establish parentage). For the same reason, we do not address 

Partanen's constitutional claims. See Matter of McKnight, 406 

Mass. 787, 797 (1990) ("this court is not likely to resolve an 

issue on constitutional grounds if the court may dispose of it 

by a consideration of rights created by statute").
4

In February, 2001, while they were both living in 

Massachusetts, Partanen and Gallagher entered into a committed 

relationship. They moved to Florida in 2002, and, the following 

year, together purchased a house there. In 2005, they decided 

to start a family "with the shared intention that they would 

both be parents to the resulting children." That year, Partanen 

unsuccessfully underwent fertility treatment using a sperm donor 

and in vitro fertilization. In 2007, Gallagher underwent 

similar treatment "with the full acknowledgment, participation, 

and consent of" Partanen. This treatment was successful, and, 

with Partanen present, Gallagher gave birth to a daughter, Jo.3 

In 2011, Gallagher again underwent fertility treatment, "with 

the full acknowledgment, participation, and consent of" 

Partanen.4 The treatment was successful, and, in 2012, Gallagher 

gave birth to a son, Ja.

Though Partanen did not formally adopt the children,5 she 

participated in raising them from the time of their birth. Her 

participation included "waking for night-time feedings, bathing, 

meal preparation, grocery shopping, transportation to/from day 

 

3 We refer to the children by pseudonyms.

4 The plaintiff participated in the insemination procedure, 

injecting the sperm that would lead ultimately to the 

defendant's second pregnancy.

5 In 2010, adoption became available to same-sex couples in 

Florida. See Florida Dep't of Children & Families v. Adoption 

of X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010).
5

care and school, staying home with the children during times of 

illness, clothes shopping, providing appropriate discipline as 

necessary, addressing their developmental needs, [and] 

comforting" them. Partanen was involved also "in all decisionmaking for the children," including in matters related to their 

education and healthcare. Partanen "provided [the children] 

consistent financial support," and both children referred to 

Partanen as "Mommy." Partanen and Gallagher represented 

themselves publicly as the children's parents in formal contexts 

such as at the children's schools and for medical appointments, 

as well as in their interactions with friends and family. They 

vacationed as a family, shared expenses, purchased joint assets, 

and sent family holiday cards.

In May, 2012, after the birth of Ja, Partanen and Gallagher 

returned to Massachusetts with the children.6 In November, 2013, 

the couple separated, and Partanen moved out of the family home. 

Partanen filed an action to establish de facto parentage in 

February, 2014. She requested visitation with the children and 

shared legal custody. In September, 2015, a judge of the 

Probate and Family Court ruled that Partanen was a de facto 

 

6 Although same-sex marriage was then possible in 

Massachusetts, see Goodridge v. Dep't of Pub. Health, 440 Mass. 

309 (2003), Partanen and Gallagher did not marry.
6

parent of the children, issued orders regarding visitation, and 

required her to pay child support.7

In October, 2014, Partanen filed the present action in the 

Probate and Family Court "to establish [full legal] parentage."8 

In February, 2015, Gallagher's motion to dismiss the complaint 

for "[f]ailure to state a claim upon which relief can be 

granted," Mass. R. Dom. Rel. P. 12(b)(6), was allowed.

2. Discussion. a. Standard of review. In reviewing the 

dismissal of a complaint pursuant to Mass. R. Dom. Rel. 

P. 12(b)(6), "[w]e accept as true the facts alleged in the . . . 

complaint as well as any favorable inferences that reasonably 

can be drawn from them." See Polay v. McMahon, 468 Mass. 379, 

382 (2014), quoting Galiastro v. Mortgage Elec. Registration 

Sys., Inc., 467 Mass. 160, 164 (2014).9

b. Statutory language. General Laws c. 209C, § 1, 

provides "[c]hildren born to parents who are not married to each 

 

7 That action is the subject of a separate appeal, and is 

not before us.

8 See A.H. v. M.P., 447 Mass. 828, 843 (2006) ("a de facto 

parent" is not "afforded all of the privileges of a legal 

parent" [citation omitted]).

9 We address Partanen's claim under Massachusetts law. 

Gallagher's contention that Florida law governs was not raised 

in the Probate and Family Court, and therefore is waived. See 

Adoption of Peggy, 436 Mass. 690, 698, cert. denied, 537 U.S. 

1020 (2002) (claim regarding choice of law waived). See also 

Hunter v. Rose, 463 Mass. 488 (2012) (applying Massachusetts 

law, including G. L. c. 209C, where child was conceived and born 

out-of-State using artificial reproductive technology). 
7

other" "a means" to obtain an "adjudication of their 

[parentage.]"10 Actions to establish parentage under G. L. 

c. 209C may be brought by, among others, "a person presumed to 

be" the child's parent. See G. L. c. 209C, § 5 (enumerating 

persons entitled to bring actions to establish "paternity, 

support, visitation or custody of a child" born out of wedlock); 

G. L. c. 209C, § 6 (defining presumed parentage). Here, 

Partanen contends that she is "presumed to be" the children's 

mother, and therefore may pursue an action for parentage.

To survive a motion to dismiss, Partanen must allege facts 

sufficient to establish that she is a "presumed parent" under 

G. L. c. 209C, two provisions of which are relevant here. 

First, she must allege that Jo and Ja are "children" as that 

term is used in the statute, i.e., people "born to a man and 

woman who are not married to each other." See G. L. c. 209C, 

§ 1. Read in gender-neutral terms, see G. L. c. 209C, § 21; 

G. L. c. 4, § 6, Fourth, this requires an allegation that the 

 

10 While G. L. c. 209C, "Children Born Out of Wedlock," uses 

the gendered phrase "adjudication of paternity," see G. L. 

c. 209C, § 1, we interpret the statute as providing a means for 

establishing parentage regardless of the parent's gender. See 

Hunter v. Rose, supra at 493 (applying G. L. c. 209C in context 

of relationship between two women); G. L. c. 4, § 6, Fourth (in 

all statutes, "words of one gender may be construed to include 

the other gender and the neuter"). See also G. L. c. 209C, § 21 

(in "an action to determine the existence of a mother and child 

relationship," "the provisions of this chapter applicable to 

establishing paternity shall apply").
8

children were "born to [two people] who are not married to each 

other."

Second, Partanen must allege adequately that she satisfied 

the "holding out" provision of G. L. c. 209C, § 6 (a), which 

states:

"(a) In all actions under this chapter a man is 

presumed to be the father of a child . . . if:

". . .

"(4) 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."

In gender-neutral terms, Partanen must allege that she, "jointly

with the mother [i.e., Gallagher], received the child[ren] into 

their home, and openly held out the child[ren] as their 

child[ren]."

Partanen maintains that the facts alleged in her complaint 

satisfy both the "born to" and "holding out" provisions. With

respect to the requirement that the children be "born to" two 

people, G. L. c. 209C, § 1, Partanen asserts that the children 

were born both to her and to Gallagher, because Gallagher's 

pregnancies and the children's births took place with Partanen's 

"full acknowledgment, participation, and consent."11 She asserts 

 

11 It is undisputed that the children were not "born to" 

their genetic fathers, the sperm donors. See Adoption of a 

Minor, 471 Mass. 373, 378 n.8 (2015) ("sperm donor may assert 

parentage only where he donates . . . 'with the intent to be the 

parent of [the] child'" [citation omitted]).
9

also, with respect to the "holding out" provision, that she and 

Gallagher jointly received the children into their home and 

openly held out the children as theirs. See G. L. c. 209C, 

§ 6 (a). Gallagher contends, however, that Partanen's complaint 

cannot survive a motion to dismiss because the provisions of 

G. L. c. 209C -- and, in particular, those in G. L. c. 209C, 

§ 6, concerning presumed parentage -- were intended only as a 

means of establishing biological parentage, and are inapplicable 

where, as here, it is known that no biological connection 

exists.

The question we must address, then, is whether Partanen may 

establish that she is the children's "presumed parent" under 

G. L. c. 209C, § 6 (a), by alleging that the children were born 

to her and to Gallagher, were received jointly into their home, 

and were openly held out as the couple's children, where it is 

known that she has no biological relationship to the children.

c. Statutory construction. As with all statutes, G. L. 

c. 209C must be construed "according to the intent of the 

Legislature ascertained from all its 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, to the end that the purpose of its framers may be 
10

effectuated." Seideman v. Newton, 452 Mass. 472, 477 (2008), 

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

We turn first to the statutory language. See Associated 

Subcontractors of Mass., Inc. v. University of Mass. Bldg. 

Auth., 442 Mass. 159, 164 (2004) ("As always, our analysis 

begins with the statutory language . . ."). While the 

provisions at issue speak in gendered terms, they may be read, 

as discussed, in a gender-neutral manner, to apply where a child 

is "born to [two people]," G. L. c. 209C, § 1, is received into 

their joint home, and is held out by both as their own child. 

See G. L. c. 209C, § 6 (a). The plain language of the 

provisions, then, may be construed to apply to children born to 

same-sex couples, even though at least one member of the couple 

may well lack biological ties to the children.12

 

12 Gallagher argues that, even under a reading that applies 

these provisions to same-sex couples, a biological link to the 

child still could be required, since two women might each have 

such a link: one by having provided the ovum and the other by 

having carried the child. Here, Partanen has no biological link 

to the children, as she was neither the egg donor nor the 

carrier. Nonetheless, properly read as gender-neutral, G. L. 

c. 4, § 6, Fourth, these provisions may apply not only to a 

child born to two women, but also to a child born to two men 

through a surrogacy arrangement. In such a situation, at least 

one of the men will be unable to form a direct biological 

relationship with the child in the manner that Gallagher 

suggests, since only one can directly contribute his genetic 

material (though the other may do so indirectly, by asking a 

female relative to provide the egg), and neither can carry the 

child.
11

Nothing in the language of G. L. c. 209C expressly limits 

its applicability to parentage claims based on asserted 

biological ties. See Chin v. Merriot, 470 Mass. 527, 537 (2015) 

("We will not 'read into the statute a provision which the 

Legislature did not see fit to put there'" [citation omitted]). 

This silence is particularly significant because G. L. c. 209C 

is a remedial statute, see Flynn v. Connors, 39 Mass. App. Ct. 

365, 368 n.9 (1995) (G. L. c. 209C should be read to "extend to 

cases within the reason, if not the letter, of the statute"), 

which must "be given a broad interpretation . . . in light of 

its purpose and to 'promote the accomplishment of its beneficent 

design'" (citation omitted). See Meikle v. Nurse, 474 Mass. 

207, 210 (2016). The statute's purpose, laid out in its first 

sentence, is to provide all "[c]hildren born to parents who are 

not married to each other . . . the same rights and protections 

of the law as all other children." G. L. c. 209C, § 1.

Here, had Jo and Ja been born to a married couple using 

artificial reproductive technology, they would have had two 

legal parents to provide them with "financial and emotional 

support." See Hunter v. Rose, 463 Mass. 488, 493 (2012), citing 

G. L. c. 46, § 4B (children born to one same-sex spouse are 

legal children of both spouses, even where one not biologically 

related to children). We decline to "read into the statute a 

provision," see Chin v. Merriot, supra, that leaves children 
12

born to unmarried couples, using the same technology, with only 

one such parent. Cf. Smith v. McDonald, 458 Mass. 540, 546 

(2010) ("While a statute governing divorced children is not 

applicable directly to nonmarital children, the legal equality 

of nonmarital children pursuant to G. L. c. 209C, § 1, dictates 

the same rule apply for children in comparable circumstances").

That the presumption of parentage in G. L. c. 209C, 

§ 6 (a) (4), may be construed to apply even where biological 

ties to the children are absent is consistent with our 

construction of other provisions in the statute. See Phillips

v. Pembroke Real Estate, Inc., 443 Mass. 110, 117 (2004) ("we 

look to other provisions of the statute for indicia of 

[legislative] intent, and for the purpose of interpreting the 

statute as a consistent whole"). For example, in Hunter v. 

Rose, supra, we applied another of the parentage presumptions in 

G. L. c. 209C, § 6 (a) -- that "a man is presumed to be the 

father" if "the child was born during [the father's] marriage" 

to the mother -- to a child born to two married women, one of 

whom had no biological relationship to the child.

We also have interpreted another provision in the statute, 

G. L. c. 209C, § 11 (a), as recognizing parentage in the absence 

of a biological relationship. That section provides that 

parentage may be established through a "written voluntary 

acknowledgement of parentage executed jointly by the putative 
13

father . . . and the mother of the child," id., and we have said 

that a father validly may execute such an acknowledgment absent 

a genetic relationship.13 See Paternity of Cheryl, 434 Mass. 23, 

32 (2001) (man could not rescind acknowledgment of paternity 

years after signing it merely because genetic testing showed him 

not to be biologically related to child). In that case, we 

explained that a "man may acknowledge paternity for a variety of 

reasons," that "we cannot assume that biology is the sole 

impetus in every case," and that, in proceedings under G. L. 

c. 209C, "consideration of what is in a child's best interests 

will often weigh more heavily than the genetic link between 

parent and child." Paternity of Cheryl, supra at 31-32.

From this, it is apparent that a biological connection is 

not a sine qua non to the establishment of parentage under G. L. 

c. 209C. Indeed, Gallagher concedes that a voluntary 

acknowledgment of parentage may be executed by a same-sex 

couple, even if one member of the couple is not biologically 

related to the children, and that, had an acknowledgment been 

 

13 The acknowledgment at issue in Paternity of Cheryl, 434 

Mass. 23 (2001), was executed before the substantial 1998 

amendments to G. L. c. 209C, § 11. See St. 1998, c. 64, § 205, 

"An Act to improve the Massachusetts child support enforcement 

program." We recognized that our decision in that case was 

consistent with the Legislature's clear intention in amending 

G. L. c. 209C, § 11, to limit the ability of a voluntary 

signatory to an acknowledgment to challenge its validity at some 

later time. See Paternity of Cheryl, supra at 29, 39.
14

executed here, it would have established Partanen as the 

children's legal parent.

Notwithstanding this assertion, however, Gallagher contends 

that, even if Partanen satisfies the "holding out" provision of 

G. L. c. 209C, § 6 (a), any presumption created on this basis 

may be rebutted by evidence that she lacks a biological 

connection to the children, i.e., that the children were not 

"born to" her. See G. L. c. 209C, § 1. Gallagher's argument 

apparently is rooted in G. L. c. 209C, § 17, which provides that 

in "an action under this chapter to establish [parentage] of a 

child born out of wedlock, the court shall, on motion of a party 

and upon a proper showing . . . order the . . . putative 

[parent] to submit to one or more genetic marker tests." Thus, 

Gallagher claims that she might seek an order to have Partanen 

undergo such testing, and thereby rebut any presumption of 

parentage created under G. L. c. 209C, § 6 (a).14

 

14 Gallagher points also to two other provisions in G. L. 

c. 209C that, she maintains, indicate the Legislature's intent 

to limit the statute's applicability to biological children. 

See G. L. c. 209C, § 8 (default judgment establishing parentage 

may enter against father only if "the mother or putative father 

submits that sexual intercourse between the parties occurred 

during the probable period of conception"); G. L. c. 209C, 

§ 11 (a) (if parent attempts to rescind voluntary 

acknowledgement of parentage, "the court shall order genetic 

marker testing"). To the extent that these provisions focus on 

proving or disproving a biological relationship, they are 

applicable only where the underlying parentage claim is based on 

biology, and not, as here, where the claim is made on another 

basis. See G. L. c. 209C, § 11 (a) (genetic testing mandatory 
15

This claim is unavailing. The statute's language expressly 

conditions an order of genetic testing on "a proper showing" by 

the moving party. G. L. c. 209C, § 17. Where, as here, the 

parentage claim is not based on a genetic relationship, 

Gallagher, as the moving party, cannot show such testing would 

be relevant to the claim at issue, and, therefore, no "proper 

showing" is possible.15 See Elisa B. v. Superior Court, 37 Cal. 

4th 108, 122 (2005) (while statute allows rebuttal of presumed 

parentage by genetic testing in "an appropriate action," case 

where parentage claim is not based on biological connection "is 

not 'an appropriate action' in which to rebut the presumption of 

presumed parenthood with proof that [plaintiff] is not the 

[children's] biological parent"). See also Chatterjee v. King, 

280 P.3d 283, 294-295 (N.M. 2012).

 

only where acknowledgement of parentage "constitute[s] the 

proper showing required for an order to submit to such testing," 

i.e., where biological relationship is at issue); Culliton v. 

Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 290 (2001) 

(evidence of occurrence of intercourse under G. L. c. 209C, § 8, 

not relevant to parentage claim where pregnancy is result of 

"reproductive advances[, which] have eliminated the necessity of 

having sexual intercourse in order to procreate").

15 That the parentage presumption may not be rebutted 

through genetic testing, however, does not mean that it cannot 

be rebutted in other ways. Rebuttal may be accomplished by 

proof that the child, even if held out by the putative parent as 

his or her own, was not actually "born to" that parent. See 

G. L. c. 209C, § 1. For example, here, Gallagher might show 

that Partanen's assertions about her having consented to the 

inseminations, and about her involvement in the ensuing 

pregnancies and births, are untrue.
16

Gallagher cites a number of cases to support her contention 

that a biological relationship is necessary to establish 

parentage under G. L. c. 209C. In one of these, C.M. v. P.R., 

420 Mass. 220 (1995), we held that a man was not a legal parent 

under G. L. c. 209C to a child born to his nonmarital partner, 

where the child was conceived before their relationship began. 

We based this conclusion on an assumption that, "[b]y 

definition," paternity cannot be established under G. L. c. 209C 

by "a person who is not the biological father of a child." See 

C.M. v. P.R., supra at 223. We since have made clear, however, 

that this assumption is incorrect. See Paternity of Cheryl, 434 

Mass. at 34 (judgment of paternity under G. L. c. 209C may 

be upheld "even though [putative father] may establish 

conclusively that he is not a child's genetic parent").

Gallagher also cites two decisions that postdate Paternity 

of Cheryl. One concerns notably different factual circumstances 

from those at issue here. See T.F. v. B.L., 442 Mass. 522, 527-

531 (2004) (woman not required, under contract law, to pay child 

support to former same-sex partner for child born after their 

separation; child was never received into their joint home or 

held out as child of both women). In the other, R.D. v. A.H., 

454 Mass. 706, 714 (2009), we held that a de facto parent did 

not have the same right to custody as a full legal parent under 

G. L. c. 209C, § 10, and therefore could not obtain custody 
17

against the wishes of such a parent, because "the term 'parent' 

[as used in that statute] refers to a biological parent" rather 

than to a de facto parent. In the context of that case, our 

intention was evident: to distinguish a de facto parent from a 

legal parent. We did not intend to suggest that G. L. c. 209C 

is limited only to parentage based on biology. Indeed, the 

result there would have been the same had the de facto parent 

sought custody against the wishes of a nonbiological adoptive 

parent. See G. L. c. 210, § 6 (adoptive parent has "all rights, 

duties and other legal consequences of" parentage).

Gallagher contends also that allowing Partanen's claim to 

proceed intrudes on Gallagher's "right [as] a single woman to 

give birth to a child into a family framework of her own 

choosing."16 The question in this case, however, is not whether 

courts may impose a second parent onto a single-parent family, 

but whether this was, in fact, a single-parent family in the 

first place. Partanen's allegation is that, from the beginning, 

the children had two parents, both of whom were jointly involved 

in the children's lives.

 

16 Gallagher notes that the Legislature has required 

insurance companies to cover fertility treatments and has not 

limited this requirement to married or partnered women, 

suggesting, in her view, a policy of protecting the rights of 

single women to create a family in the absence of a second 

parent. See, e.g., G. L. c. 175, § 47H.
18

Moreover, while Gallagher has an acknowledged interest in 

constructing "a family framework of her own choosing," the 

statute at issue was enacted for the benefit of children born 

outside the context of marriage, see G. L. c. 209C, § 1, whose 

"welfare is promoted by ensuring that [they] ha[ve] two parents

to provide . . . financial and emotional support."17 See Hunter

v. Rose, 463 Mass. at 493. As another court has observed,

"paternity presumptions are driven, not by biological 

paternity, but by the [S]tate's interest in the welfare of 

the child and the integrity of the family. . . . The 

familial relationship between a nonbiological [parent] and 

[a] child . . . , resulting from years of living together 

in a purported parent/child relationship, is considerably 

more palpable than the biological relationship of actual 

paternity and should not be lightly dissolved" (citations 

omitted).

In re Guardianship of Madelyn B., 166 N.H. 453, 461 (2014).

We note, in this regard, that courts in other jurisdictions 

have read comparable provisions to establish presumed parentage 

in the absence of biological relationships, and have done so, in 

 

17 Gallagher contends that the purpose of the statute will 

be ensured through the adjudication of Partanen as a de facto 

parent, and that full legal parentage will not provide 

significant additional benefits. This contention is 

inconsistent with established case law. See A.H. v. M.P., 447 

Mass. at 843 ("a de facto parent" is not "afforded all of the 

privileges of a legal parent" [citation omitted]). See also

R.D. v. A.H., 454 Mass. 706, 711 (2009) (full legal parent may 

obtain primary custody over other parent's objection where in 

best interests of child; de facto parent may obtain such custody 

only if legal parent first found to be unfit); American Law 

Institute, Principles of the Law of Family Dissolution: 

Analysis and Recommendations § 3.10 & comment c (2002) (limiting 

circumstances in which de facto parent is liable for child 

support).
19

part, out of concern for the welfare of children born out of 

wedlock.18 See, e.g., Elisa B. v. Superior Court, 37 Cal. 4th at 

120, 122 ("The circumstance that [former member of same-sex 

couple pursuing parentage claim] has no genetic connection to 

the twins does not . . . mean that she did not hold out the 

twins as her . . . children" and that she is not their presumed 

parent; "[r]ebutting the presumption that [she] is [their]

parent would leave them with only one parent and would deprive 

them of the support of their second parent"); In re Parental 

Responsibilities of A.R.L., 318 P.3d 581, 584, 587 (Colo. Ct.

App. 2013) (female former same-sex partner, not biologically 

related to child, may pursue parentage claim under provision 

that "a man is presumed to be the father of a child if 'he 

receives the child into his home and openly holds out the child 

as his natural child'"; "[t]his interpretation is 

supported . . . by the compelling interest children have in the 

love, care, and support of two parents, rather than one, 

whenever possible [citation omitted]); In re Guardianship of 

Madelyn B., 166 N.H. at 460, 462 (former same-sex partner, not 

 

18 See also Frazier v. Goudschaal, 296 Kan. 730, 747 (2013) 

("female can make a colorable claim to being a presumptive 

mother of a child without claiming to be the biological or 

adoptive mother" under provision that person is presumed parent 

if she "notoriously . . . recognizes [the parentage] of the 

child" [citation omitted]). The court in that case reached this 

result based on constitutional considerations that we need not 

address here. See id. at 754.
20

biologically related to child, may pursue parentage claim 

because she "adequately pleaded that she received [the child] 

into her home and openly held [the child] out as her child"; 

were this not so, "a child in a situation similar . . . could be 

entitled to support from, and be the legitimate child of, only 

her birth mother"); Chatterjee v. King, 280 P.3d at 293, 296 

(former same-sex partner, not biologically related to child, may 

pursue parentage claim because "her allegations satisfy the hold 

out provision of" statute; "the child's best interests are 

served when intending parents physically, emotionally, and 

financially support the child"). See also Uniform Parentage Act 

§ 703 (2002) (person who "consents to . . . assisted 

reproduction by a woman . . . with the intent to be the parent 

of her child . . . is a parent of the resulting child"); id. at 

§ 703 comment ("This provision reflects the concern for the best 

interests of nonmarital as well as marital children . . .").

Having determined that a person without a biological 

connection to a child may be that child's presumed parent under 

G. L. c. 209C, § 6 (a), we must decide whether, in this case, 

Partanen adequately has alleged that she is such a parent. We 

conclude that she has. Partanen was required to allege, first, 

that the children were born both to Gallagher and to her. See 

G. L. c. 209C, § 1. In this regard, Partanen claims that both 

of Gallagher's pregnancies were undertaken "with the full 
21

acknowledgment, participation, and consent of" Partanen, and 

"with the shared intention that [the defendant and plaintiff] 

would both be parents to the resulting children." She states 

also that she was present in the delivery room when the children 

were born. These allegations suffice to establish, for purposes 

of Mass. R. Dom. Rel. P. 12(b)(6), that the children were born 

both to her and to Gallagher. See Elisa B. v. Superior Court, 

37 Cal. 4th at 125 (nonbiological mother "actively participated 

in causing the children to be conceived with the understanding 

that she would raise the children as her own together with the 

birth mother"); In re Guardianship of Madelyn B., 166 N.H. at 

462 (both parties "planned to have and raise children together," 

"prepar[ing the child's] nursery together in the home they had 

jointly purchased"; nonbiological mother "was in the delivery 

room").

Partanen was required also to allege that she and Gallagher 

"received the child into their home and openly held out the 

child as their child." G. L. c. 209C, § 6 (a) (4). In her 

complaint, Partanen asserts that she helped raise the children 

in the home she shared with Gallagher, that she participated 

actively in the care and nurturing of the children from the 

moment of their birth, that she was involved in key decisions, 

that she and Gallagher represented themselves to others -- both 

in formal and informal contexts -- as the children's parents, 
22

and that the children refer to her as "Mommy." These 

allegations, too, are sufficient. See Elisa B. v. Superior 

Court, supra (nonbiological mother "voluntarily accepted the 

rights and obligations of parenthood after the children were 

born"); In re Guardianship of Madelyn B., supra at 463 

(nonbiological mother was called "Momma," "appeared 'to the 

world' to be [child]'s parent," and was referred to as such in 

child's "school and medical records").

3. Conclusion. The judgment of dismissal is reversed, and 

the case is remanded to the Probate and Family Court for further 

proceedings consistent with this opinion.

So ordered.