The Act to Ensure Legal Parentage Equality, also known as the Massachusetts Parentage Act (the “Act”), which updated Chapter 209C of the Massachusetts General Laws, was signed into law by Gov. Maura Healy on Aug. 9, 2024. It is the first time that the commonwealth’s parentage law has been updated in 40 years. This Act goes a long way in defining parentage, reflecting the current landscape of the different ways to make a family and providing a roadmap for drafting surrogacy agreements, and went into effect on Jan. 1, 2025. In addition to removing references to gender, the Act also defines several variations of “parent” (such as “Acknowledged Parent,” “Adjudicated Parent,” “Alleged Genetic Parent,” “Intended Parent,” “Parent” and “Presumed Parent”).
Furthermore, the Act added 20 new sections to Chapter 209C to address adjudication of parentage claims, surrogacy agreements, and the rules related to commencing such proceedings. Interestingly, the provisions related to surrogacy agreements contain certain requirements of the surrogate, such as a requirement that a surrogate must have previously given birth and that a surrogate must complete a mental health consultation (although the statute does not state how or if a mental health professional approves a person entering into such an agreement). For anyone who plans to draft surrogacy agreements under the new law, it will be important to follow all the requirements laid out therein.
Notably, and of utmost importance to estate planners, the Act defines “Assisted Reproduction,” which members of the estate planning community have tried to define individually in their own documents, as assisted reproduction has become more and more common. Assisted Reproduction is defined by the Act as:
a method of causing pregnancy other than sexual intercourse including, but not limited to, artificial insemination, intrauterine, intracervical or vaginal insemination, donation of gametes or embryos, in vitro fertilization and transfer of embryos and intracytoplasmic sperm injection.
What is fascinating is that the Act does not define the term “child,” but rather focuses on the parental relationship. As such, estate planners should be revisiting how the parent-child relationship is defined in their documents. For example, should a child of an acknowledged parent be treated in the same manner as the child of an alleged genetic parent? Additionally, since there are many new defined terms in the Act, estate planners may want to consider adopting some of those terms in their own documents, with reference to the legal definitions rather than trying to craft their own definitions.
Molly R. Soiffer is a partner in the law firm of Bove Langa Witherell & Soiffer PC, located in Boston. Her practice is focused on estate planning, asset protection and estate administration, which includes advising clients on wealth preservation, estate tax minimization, incapacity, domestic and international estate planning, gift transaction planning, preparation of gift and estate tax returns, business succession planning, prenuptial agreements, trust administration and probate administration. Soiffer obtained her J.D. and LL.M. in Taxation from the Boston University School of Law and is licensed to practice law in Massachusetts, New York and New Hampshire. Soiffer has written various articles in national and international publications and lectured in various jurisdictions around the United States. She is also a guest lecturer at the LL.M. Taxation Program at Boston University.