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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 decision-

making 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.
