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For the first time in Massachusetts, a state Probate Court ruling has allowed two mothers — rather than a mother and a father — to be listed on an original birth certificate issued at the time of birth. The two women, a lesbian couple, have biological ties to the child, who was born in June. One donated the egg as the “genetic” mother, and the other, her longtime partner, carried the child as the “gestational” mother, the one who carried the egg — fertilized with artificially inseminated, anonymous sperm — to term. Until now, two parents of the same sex could be listed as “co-parents” on an amended birth certificate following an adoption, but not on the original certificate issued at birth. Same-sex adoptions are allowed under Massachusetts law. A ruling by Suffolk County, Mass., Probate and Family Court Judge Nancy M. Gould found nothing in state law, Chapter 46, Section 1 (regarding birth certificates) that “prohibits the entry of two parents of the same sex as the mothers on a birth certificate.” Mary Jane Knoll, who donated the egg, and Christine Finn, who gave birth, filed their case, Knoll and Finn v. Beth Israel Deaconess Medical Center, Inc., No. 00W-1343, after the hospital asked that their request about the birth certificate be decided by the court. The hospital is not challenging the decision. FIRST IN THE STATE, NOT THE COUNTRY Similar cases have been decided in California, but this is the first to be considered in Massachusetts. Future such circumstances involving lesbian couples would likely be decided on a case-by-case basis. Family law attorneys say they aren’t surprised by the ruling, because non-traditional families have been evolving in a variety of forms for years. “Surrogacy arrangements are out there in the world, and the courts have been a little behind in acknowledging the realities and responsibilities that flow from these situations,” said New Bedford, Mass., attorney Margaret D. Xifaras, of the law firm Lang, Xifaras & Bullard. “Now, the courts are showing a willingness to listen, and making decisions based on what makes sense.” Family law attorney Marisa A. Pizzuto, who practices law in Andover, Mass., and Boston, said there may be similar cases of parenthood in the gay community that haven’t been formalized in court. “In Massachusetts, a gay couple is not a legal couple, so they can’t go to the courts for many things,” said Pizzuto, who has conducted mediation sessions in gay couple disputes. “This is another creative and intelligent way to gain some rights for themselves.” The couple’s counsel, Cambridge, Mass., attorney Joyce Kauffman of the law firm Triantafillou & Guerin said the case could be challenged by the state Registry of Vital Records and Statistics. “It’s under review,” she said. Kauffman said declaring the maternity of both women at their son’s birth is “a binding action the same as paternity is a binding action.” “We’re not looking at some father’s rights being terminated here. An anonymous donor signs an agreement to waive all parental rights. That’s standard procedure,” she said. In her ruling, Gould noted a California case, In the Matter of L.S. Genetic Mother, and L.M. Gestational Mother, No. FL 032006 (1999): “While Massachusetts has never addressed this issue before, other states, such as California, have addressed this exact issue. In California, which has adopted the Uniform Parentage Act, the courts have allowed the entry of a judgment declaring an egg donor and her partner the legal parents of a child, and have allowed the birth record to reflect this.” Gould found the best interests of the child are served by declaring both Knoll and Finn as the child’s legal parents. “Where the plaintiffs are both connected to the child by biology and through birth, and where both have intentionally pursued this avenue in order to bring a child into their lives, both should be determined to be the legal parents of the child,” the judge wrote. “Each party intended that the other have equal parental rights, and each party desires to be the legal parent of their child and to assume all of the responsibilities, financial and otherwise, of raising their child. The child will benefit from the love, affection and care of two dedicated parents and the parents will enjoy the benefits of a parental relationship.”

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