Parenthood by Contract Invalid in Massachusetts

The Supreme Judicial Court of Massachusetts recently held that the state does not recognize the theory of parenthood by contract even if the parties enter an agreement concerning the conception and raising of a child. The end result of this decision leaves the child conceived during a same-sex relationship without the benefit of support from both parents.

In T.F. v. B.L., 442 Mass. 522, 2004 WL 1879513 (2004), the plaintiff and the defendant cohabited in a committed lesbian relationship for a period of four years. During their relationship, the plaintiff had frequently expressed her desire to have children. The defendant was reluctant, but finally acceded to the plaintiff's wishes. The parties agreed that the plaintiff would be artificially inseminated. Six months after she became pregnant, the defendant moved out of the parties' home. At the time, she promised to support the child financially.

After the plaintiff gave birth, the defendant visited her and the child in the hospital and participated in naming the child. The defendant again promised to help support the child and to alter her work schedule so she could help raise him. The defendant also gave the plaintiff $800 at that time. Three months after the birth, the defendant informed the plaintiff that she did not want anything more to do with her or the child. The plaintiff then petitioned the court to impose a child support obligation on the defendant. The plaintiff argued that the parties had entered into an enforceable implied contract to conceive and support the child.

The Supreme Judicial Court of Massachusetts found that an implied contract existed between the parties. However, the court concluded that such an agreement was unenforceable. The court held that Massachusetts does not recognize the concept of parenthood by contract. Instead, the court stated that parties should be permitted to reconsider agreements to enter into familial relationships. "The decision to become, or not to become, a parent is a personal right of 'such delicate and intimate character that direct enforcement . . . by any process of the court should never be attempted.'" 2004 WL 1879513, at *5.

Although the court found that the parties' agreement was unenforceable, the court did hold out hope that an agreement for child support only may be upheld in subsequent cases. The court noted that a promise to pay child support may be enforceable. The court concluded, however, that the evidence did not indicate that the defendant made any separate promise to pay child support, but that any such promise was part of her agreement to act as the child's parent and was not severable. Even if the promise to pay child support was severable from the rest of the unenforceable implied contract, the court found that no independent consideration existed that would support the promise outside of her unenforceable promise to coparent the child with the plaintiff.

David Cotter is a Senior Attorney of the National Legal Research Group, the nation's oldest and largest research firm for attorneys.