1. No category

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NOTES
It’s More Than a One-Night Stand: Why a Promise to Parent
Should Obligate a Former Lesbian Partner to Pay Child Support
in the Absence of a Statutory Requirement
“‘You can have a [heterosexual] couple that meet at a bar, sleep together
one night, and because he is biologically the father, he has more responsibility
than a lesbian couple who goes through months and months of deciding upon
whether to have a child, confirming their consent to sperm donation, [and]
signing various forms at the hospital. . . [I]t doesn’t seem right that you can
help create a child and not bear responsibility for the child.’”1
I. INTRODUCTION
After spending three years together and participating in a commitment
ceremony, T.F. and B.L. agreed to have a child.2 Together, the parties selected
an anonymous donor, shared the insemination and prenatal care expenses, and
signed the clinic’s requisite insemination consent form.3 T.F. became pregnant
on the second insemination attempt.4 Despite their relationship’s deterioration
in the months following the news of T.F.’s pregnancy, B.L. verbalized her
continuous commitment to parent and support the child she agreed to
conceive.5 Soon after the child was born, B.L. sent a letter to T.F. indicating
her desire to cut off all future contact with T.F. and the baby.6
1. Ray B. Burton, III, ‘Parenthood By Contract’ Unenforceable; SJC’s Voiding of Support Obligation
Called ‘Unfortunate’ for Children, W. MASS. L. TRIB., Oct. 17, 2004, at 1 (quoting attorney who filed amicus
brief on behalf of T.F. in T.F. v. B.L., 813 N.E.2d 1244 (Mass. 2004)).
2. T.F. v. B.L, 813 N.E.2d 1244, 1246-47 (Mass. 2004) (summarizing facts of case). B.L. was initially
opposed to having a child but changed her mind in the summer of 1999. Id. at 1247.
3. Id. B.L actually signed the consent form in two separate places on the line designated for “spouse’s
signature.” Brief of Plaintiff-Appellant at 8, T.F. v. B.L., 813 N.E.2d 1244 (Mass. 2004) (No. SJC-09104) (on
file with author).
4. T.F., 813 N.E.2d at 1247. At first, the parties discussed the possibility of B.L. being the birth mother,
but a degenerative disc made pregnancy more difficult for B.L. than for T.F. Id.
5. Id. at 1247-48 (describing B.L.’s desires to adopt and financially support child).
6. Id. at 1248. T.F. delivered the child, a boy, prematurely, and B.L. made several visits to both mother
and child in the hospital. Id. B.L also helped choose the child’s name and sent pictures of herself and the child
to her friends with the message, “I hope you all enjoy the pics of my wonderful, beautiful boy.” Id. B.L.
initially helped to support the child, but she admittedly stopped providing assistance because she was angry at
T.F. Id.
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In August of 2004, the Supreme Judicial Court of Massachusetts held that to
the extent T.F. and B.L. entered into an agreement, express or implied, to coparent the child, the agreement was unenforceable because “‘parenthood by
contract’ is not the law in Massachusetts.”7 The dissent, however, argued that
even though Massachusetts does not recognize parenthood by contract, the
agreement in this case included an implied promise of support, which is
enforceable.8 Justice Greaney therefore concluded, “[a] person cannot
participate, in the way the defendant did, in bringing a child into the world, and
then walk away from a support obligation.” 9
While state courts and legislatures have responded in part to changes
occurring in the American family, cases like T.F. demonstrate that the law does
not adequately provide for nontraditional family scenarios—particularly the
gay family.10 There are many cases involving non-biological gay litigants
seeking custody and/or visitation of children to whom they consider themselves
a parent, but few address the liability of a non-biological gay parent to pay
child support.11 This note, therefore, focuses on a same-sex partner’s liability
for child support when she has actively participated in the conception of a child
born to her partner.12 This category of same-sex partners may be referred to
generally as non-biological parents, or more specifically as de facto parents or
nonparents, depending on their relationship with the children born from their
promises or conduct.13
7. T.F. v. B.L, 813 N.E.2d 1244, 1251 (Mass. 2004) (reasoning public policy prevents enforcement of
contract binding person to parenthood). The Supreme Judicial Court’s decision was very close with four
justices comprising the majority and three justices dissenting. See id. at 1246, 1254.
8. Id. at 1258 (Greaney, J., concurring in part and dissenting in part) (adopting trial judge’s finding of
agreement between parties that included promise to support child).
9. Id. at 1255 (Greaney, J., concurring in part and dissenting in part).
10. See Changing Realities of Parenthood: The Law’s Response to the Evolving American Family and
Emerging Reproductive Technologies, 116 HARV. L. REV. 2052, 2074 (2003) (noting reproductive technologies
undermine states’ traditional definition of parenthood); cf. infra Parts II(B) and II(C)(2) (discussing
legislatures’ and courts’ handling of child support issue among lesbian partners).
11. Mark A. Momjian, Cause of Action Against Former Domestic Partner to Pay Child Support, in 23
SHEPARD’S CAUSES OF ACTION § 1 (2d ed. 2003) (introducing discussion on domestic partners’ liability for
child support).
12. See infra Parts II-III. Most of the cases addressing the issue of a same-sex partner’s liability for child
support pertain to lesbian couples, where both partners agree to have a child and one becomes pregnant after
utilizing artificial insemination. See, e.g., Chambers v. Chambers, No. CN00-09493, 2002 WL 1940145, *1
(Del. Fam. Ct. Feb. 5, 2002) (considering whether lesbian partner of biological parent liable for child support);
State ex rel. D.R.M. v. Wood, 34 P.3d 887, 889-90 (Wash. Ct. App. 2001) (petitioning to impose child support
obligation on biological mother’s former lesbian partner); Karin T. v. Michael T., 484 N.Y.S.2d 780, 781 (N.Y.
Fam. Ct. 1985) (seeking child support from former female partner living as a man). Accordingly, this note will
primarily focus on the child support obligation of lesbian non-biological parents of children born through
artificial insemination. For general information about surrogacy and it’s use by gay men to have a family, see
generally Marla J. Hollandsworth, Gay Men Creating Families Through Surro-gay Arrangements: A
Paradigm for Reproductive Freedom, 3 AM. U. J. GENDER & L. 183 (1995) (discussing creation of gay families
through surrogacy).
13. Patricia M. Logue, The Rights of Lesbian and Gay Parents and Their Children, 18 J. AM. ACAD.
MATRIM. L. 95, 96 (2002) (describing types of “parents” involved in same-sex relationships resulting in
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Part II of this note explores the general history and policies underlying child
support statutes and discusses current statutory provisions that allow for the
imposition of child support on a former same-sex partner.14 In states where no
statute mandates same-sex partners pay support, case law governs and Part II
highlights the limited use of equitable principles by the courts to impose an
obligation of support.15 Finally, Part II outlines the American Law Institute’s
recommendations for imposing child support on domestic partners, focusing on
the category of persons known as “parents by estoppel.”16 Part III analyzes
how courts could and should impose an obligation of support on same-sex
partners by applying factually analogous reasoning from previous court
decisions, as well as looking to public policy considerations.17 Lastly, Part III
addresses courts’ concerns about imposing a support obligation on nonparents
and offers a recommendation on how to alleviate those concerns.18
II. HISTORY
A. Origin of the Child Support Obligation and Underlying Public Policy
Considerations
English Common Law considered parental support of a child primarily an
unenforceable moral duty, thereby precluding any common-law action for the
recovery of support for a minor child.19 Without precedent to rely on, in the
children). In this note, the term “biological parent” is used for convenience to refer to both biological and
adoptive parents. A “nonbiological parent” or “de facto parent” refers to persons raising children in a parental
capacity but without a biological or adoptive connection to the child. See PRINCIPLES OF THE LAW OF FAMILY
DISSOLUTION: ANALYSIS AND RECOMMENDATIONS [hereinafter PRINCIPLES] § 2.03(1)(c) (A.L.I. 2002)
(defining “de facto parent” and discussing importance of legal status). A “legal parent” refers to a parent
recognized as such under state statutes or common. Id. at § 2.03(1)(a) (indicating persons qualifying as “legal
parent”). Finally, a nonparent, for the purposes of this note, refers to a person who has consented to her
partner’s insemination with the intent to help parent the child, but whom never actually acts as a parent.
14. Infra Part II.A-B.
15. Infra Part II.C.
16. Infra Part II.D.
17. Infra Part III.A-B.
18. Infra Part III.C-D.
19. Drew D. Hansen, Note, The American Invention of Child Support: Dependency and Punishment in
Early American Child Support Law, 108 YALE L.J. 1123, 1133-34 (1999) (noting difference between American
and English views of parental obligation for child support). Justice Blackstone, an eminent authority at the
time, maintained that the child support obligation was a moral, not legal, duty and was impressed upon parents
because they had voluntarily brought their children into being. Laurence C. Nolan, Legal Strangers and the
Duty of Support: Beyond the Biological Tie—But How Far Beyond the Marital Tie?, 41 SANTA CLARA L. REV.
1, 4 (2000) (reiterating English view of parental obligation to support children). While there was no
enforceable common law duty for child support in England, the Elizabethan Poor Law of 1601 “authorized
local parishes to recover the money they spent in aiding single mothers and children from a nonsupporting
father.” Hansen, supra, at 1134 (summarizing statutory provision exception to child support obligation under
English law). Because this statute only applied when a family was determined to be completely destitute,
single mothers left economically vulnerable after divorce or abandonment were provided no assistance. Id.
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beginning of the nineteenth century American courts created a legally
enforceable child support duty in response to concerns over rising rates of
dependency among single mothers and their children.20 While initially the
courts imposed an obligation of support solely on the father, today both parents
are considered equally responsible for their child’s support.21
Legislation imposing an obligation of support on parents for their minor
children exists in every jurisdiction.22 By imposing support obligations on
parents, state legislatures have declared that parents, not taxpayers, are the ones
primarily responsible for supporting dependent children.23 For example, the
Massachusetts law governing child support enforcement states that “[i]t is the
public policy of the [C]ommonwealth that dependent children shall be
maintained, as completely as possible, from the resources of their parents,
thereby relieving or avoiding, at least in part, the burden borne by the citizens
of the commonwealth.” 24 Although a state’s interest in protecting the public
purse underlies the enforcement of the child support statutes, exactly who may
20. Hansen, supra note 19, 1133 (discussing American invention of parent’s legal duty to support
children); see also Stanton v. Willson, 3 Day 37 (Conn. 1808); 1808 WL 85, at *1 (holding father liable for
support and education of his children); Van Valkinburgh v. Watson, 13 Johns. 480 (N.Y. 1816) (per curiam)
(recognizing legal responsibility of father to support his children). These two cases are notable not only for
“their casual assertion of a legally enforceable child support duty in the face of English precedent,” but also
because of the courts’ forward thinking to even more precarious economic situations of children than
demonstrated in these cases. Hansen, supra note 19, at 1136 (articulating courts’ concern about future minors
becoming paupers from lack of support).
21. Nolan, supra note 19, at 4 (explaining current American view of child support). Laws requiring a
parent to support his children born out-of-wedlock developed separately from the duty to support children born
or conceived during a marriage. Id. at 5. Under English common law, neither parent had a duty to support a
child born out-of-wedlock. Id. American courts, however, held mothers of children born out-of-wedlock liable
for supporting their children while fathers were generally not liable unless obligated by statute. Id. Today,
constitutional principles prohibit distinguishing between children born in or out-of-wedlock for the purposes of
determining parental support obligations. See Gomez v. Perez, 409 U.S. 535, 537-38 (1977) (per curiam)
(holding state must not deny illegitimate children benefits accorded children in general).
22. Nolan, supra 19, at 4.
23. CAROLYN ROYCE KASTNER & LAWRENCE R. YOUNG, CHILD SUPPORT ENFORCEMENT BENEFICIAL
LAWS PROJECT, IN THE BEST INTEREST OF THE CHILD: A GUIDE TO STATE CHILD SUPPORT AND PATERNITY
LAWS 1 (1982) (discussing public policy considerations underlying child support statutes generally); see also,
e.g., ARIZ. REV. STAT. ANN. § 46-401 (1997) (stating public policy requiring parents to support their children
and not citizenry); N.H. REV. STAT. ANN. § 161-B:1 (Supp. 2002) (articulating purpose of support statute: to
lighten burden on taxpayers); OR. REV. STAT. § 416.405 (1999) (relieving burden on general citizenry and
single parents by requiring parents to support dependent children).
24. MASS. GEN. LAWS ch. 119A, § 1 (2003); see also Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280, 290
(Cal. Ct. App. 1998) (stating legislature has gone to considerable lengths to insure parents, and not taxpayers,
support children). “Two important public policies are furthered by the Massachusetts child support scheme:
(1) providing for the best interests of children, and (2) ensuring that the taxpayers are secondary to the parents
in meeting the financial needs of dependent children.” Dep’t of Revenue v. Mason, 790 N.E.2d 671, 674-75
(Mass. 2003). To determine the amount of a parent’s liability for child support, a court will take into
consideration the child support guidelines promulgated by that state as well as the best interests of the child.
See MASS. GEN. LAWS ch. 208, § 28 (1998) (discussing determination of parental child support obligations);
Commonwealth of Massachusetts, Child Support Guidelines (effective Feb. 15, 2002) (outlining factors
considered
in
determining
amount
of
parent’s
liability
for
child
support),
at
http://www.mass.gov/courts/formsandguidelines/csg2002.html.
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be considered a “parent” is often unclear.25
B. Imposition of Child Support by Statute
1. Who Is a “Parent” Under State Support Statutes?
All jurisdictions hold parents of a minor child equally liable for financial
support; however, most child support statutes do not define “parent” within
their statutory scheme.26 As a general rule, the term parent is interpreted by the
courts to include only biological, adoptive, and presumptive parents.27 A few
courts, however, have interpreted the term parent to include a legal parent’s
same-sex partner.28
In Chambers v. Chambers,29 a Delaware family court found a former samesex partner was a “parent” under the state’s child support statute because of the
partner’s active participation in the child’s conception and in raising the child. 30
Noting the passage of time and the increase in the number of same-sex parents
since the enactment of Delaware’s child support statute, the court resolved to
address the “latent ambiguity” in the definition of “parent.” 31 The court then
25. See Mark Momjian, Estoppel in the Name of Love: Child Support Litigation Between Former
Domestic Partners, 15 DIVORCE LITIG. 104, 104 (June 2003) (articulating litigation problems between samesex couples because most support statutes fail to define “parent”).
26. Id.; see also, DEL. CODE ANN. tit. 13, § 501 (1999) (excluding definition of “parent” from child
support statute); 23 PA. CONS. STAT. ANN. § 4321 (West 2001) (failing to define “parent” in terms of child
support liability). Pennsylvania’s domestic relations code states, “[p]arents are liable for the support of their
children who are unemancipated and 18 years of age or younger.” § 4321(2). The term parent is not only
undefined in the support statute, but also remains undefined in the custody statute. Momjian, supra note 25, at
104 (noting statutes similar to support statutes fail to define “parent”).
27. Karin T. v. Michael T., 484 N.Y.S.2d 780, 782 (N.Y. Fam. Ct. 1985) (stating general definition of
“parent” for state statutes imposing child support as biological or adoptive); see Nolan, supra note 19, at 11-12
(stating presumption of fatherhood for husband if child born during marriage). But cf. PRINCIPLES, supra note
13, at § 3.02 (defining “parent” more broadly than state statutes). Under the ALI Principles, the term “parent”
may also include a person whose conduct equitably estops him or her from denying a parental support
obligation. Id. at § 3.02, cmt. b. For further discussion of the ALI’s recommendations, see infra Part II.D.
28. See Elisa B. v. Super. Ct., 117 P.3d 660, 670 (Cal. 2005) (holding former partner liable for support as
presumed mother within meaning of Uniform Parentage Act); Chambers v. Chambers, No. CN00-09493, 2002
WL 1940145, *10 (Del. Fam. Ct. Feb. 5, 2002) (interpreting definition of parent in Delaware support statute to
include lesbian partner of biological mother); Karin T., 484 N.Y.S.2d at 784 (finding former lesbian partner
acted as “parent” making her liable for child support). But see State ex rel. D.R.M., 34 P.3d 887, 892 (Wash.
Ct. App. 2001) (holding former partner not considered parent under Uniform Parentage Act).
29. No. CN00-09493, 2002 WL 1940145 (Del. Fam. Ct. Feb. 5, 2002).
30. Id. at *10 (reasoning based on facts evincing partner’s active conduct in conception of child). Carol
and Karen were involved in a committed relationship when they decided to have a child together. Id. at *1.
Karen underwent in vitro fertilization using semen provided by an anonymous donor. Id. After the child’s
birth, the partner’s lived together intermittently, finally separating when the child was three years old. Id.
Following the separation, Carol quickly filed a petition for visitation and the parties agreed to a permanent
visitation schedule between Carol and the child. Id. When Karen later filed for child support from Carol,
however, Carol asserted that she was not liable for support because she was not the child’s “parent” within the
meaning of the Delaware child support statute. Id. at *2.
31. Id. at *4 (accepting duty to interpret statute). The Delaware child support statute, in part, states that
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determined that the former partner satisfied the definition of “parent” under
Delaware’s child support statute by acknowledging changing societal
definitions of “family” and “parent.”32The court also mentioned that if it
accepted the former partner’s narrow definition of parent, the child might face
impoverishment and speculated that the legislature did not intend for a child in
this situation to be thrown into poverty.33
Most recently, the California Supreme Court has interpreted California’s
Uniform Parentage Act (UPA) to presume a former lesbian partner mother to
twins born to her former partner, and thus liable for their financial support. 34
After first determining that California law does not prevent two women from
both being a parent to a child, the Court in Elisa B. v. Superior Court35 held
Elisa B. liable for support because she received the twins into her home and
openly held the twins out as her own.36
“the duty to support a child under the age of 18 years, whether born in or out of wedlock, rests primarily upon
the child’s parents.” DEL. CODE ANN. tit. 13, § 501(a) (1999) (stating requirements of child support statute).
32. Chambers v. Chambers, CN00-09493, 2002 WL 1940145, *4 (Del. Fam. Ct. Feb 5, 2002) (concluding
Carol “parent” for child support purposes).
33. Id. at *5. The court reasoned that,
Carol was an integral, if not essential, factor in [the child’s] conception. Clearly, parentage is more
than an act of biology, as is readily apparent in the myriad of cases that come before this court each
year involving fathers who have contributed genetic material to create a life but who have assumed
little or no responsibilities of parentage after birth.
Id. at *10.
34. Elisa B. v. Super. Ct., 117 P.3d 660, 670 (Cal. 2005) (concluding Elisa B. presumptive mother
pursuant to § 7611(d) of UPA). First adopted in 1973, the Uniform Parentage Act (UPA) was considered a
landmark Act, promoting equality while disregarding parents’ marital status. UNIF. PARENTAGE ACT, Prefatory
Note, 9B U.L.A. 296 (2001) (discussing creation of UPA). Since 1973, nineteen states have adopted the UPA
and many others have adopted significant portions of it. Id. In California, the UPA governs who may be
considered a “parent” for purposes of determining support obligations and visitation and custody rights. See
Elisa B., 117 P.3d at 664 (explaining UPA’s definition of parent child relationship).
35. 117 P.3d 660 (Cal. 2005). Elisa B. and Emily entered into a lesbian relationship in 1993. Id. at 663.
After both women discussed their desire to have children together and their mutual desire to each give birth,
both women began attempts to artificially inseminate themselves using sperm from the same donor so their
children would be biological siblings. Id. In 1997, Elisa gave birth to Chance, and in 1998, Emily gave birth to
twins, Ry and Kaia. Id. As per an agreement they made before the children’s birth, Emily stayed home with
the children while Elisa was the primary breadwinner. Id. Elisa and Emily separated in November, 1999.
Elisa continued to support Emily and the twins for some time after their separation, but then discontinued
payments, forcing Emily to seek public assistance. Id.
36. See Elisa B., 117 P.3d at 667 (applying two prongs of UPA to find Elisa liable for support). The UPA
has separate provisions defining who is a mother and who is a father. Id. at 664. Section 7610 provides that a
parent-child relationship may be established “between a child and natural mother. . . by proof of her having
given birth to the child. . .” Id.
Section 7611 provides several circumstances in which ‘a man is presumed to be the natural father of
a child, including:
if he is the husband of the child’s mother, is not impotent or sterile, and was cohabiting with her; if
he signs a voluntary declaration of paternity stating he is the ‘biological father of the child’; and if
‘he receives the child into his home and openly holds out the child as his natural child.’ (internal
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Elisa actively assisted Emily in becoming pregnant, with the understanding that
they would raise the resulting children together. Having helped cause the
children to be born, and having raised them as her own, Emily[sic] should not
be permitted to later abandon the twins simple because her relationship with
37
Emily dissolved.
a. Second Parent Adoption
If a court does not interpret the definition of “parent” within the context of a
statute to include a same-sex partner who has acted like a parent, another way a
statutorily imposed obligation for child support can arise is from a secondparent adoption.38 Because adoptive parents are considered “parents” under
state child support statutes, a person who adopts the biological child of her
partner will be liable for support.39 This type of adoption is known as second
parent adoption.40 Under second parent adoption, the biological parent does
not have to relinquish her parental rights before another may adopt her child. 41
citations omitted).
Id.
While the UPA contains separate provisions for determining who is a mother and who is a father, section 7650
expressly provides that the provisions applicable to determining a father-child relationship may also apply to
determining a mother-child relationship. Id. at 665.
In Elisa B., the court had to determine whether Elisa B. was a presumed parent under section 7611(d). Id. at
664; see In re Karen C., 124 Cal.Rptr.2d 677, 681 (Cal. Ct. App. 2002) (holding subdivision (d) of section
7611 should apply equally to women). The presumption of parentage under section 7611 may be rebutted, in
an “appropriate action,” by clear and convincing evidence that a presumed parent is not the child’s biological
parent. See CAL. FAM. CODE § 7612 (2004). In Elisa B., the Court wrote that this was not an “appropriate
action” for rebuttal of Elisa B.’s presumed parentage because of her active participation in the conception of the
twins. Elisa B., 117 P.3d 668-69. Instead, the Court concluded that Elisa B. was a presumed parent under
section 7611(d) because she told people she was the twins’ mother, listed the twins’ as dependants on her tax
return, and breastfed the twins. Id. at 669.
37. Elisa B., 117 P.3d at 670.
38. See infra notes 39-45; see also infra Part II.B.1.b. (discussing statutory presumption as additional
method of imposing child support obligation by statute).
39. See Momjian, supra note 11, at § 4 (articulating domestic partner’s child support obligation after
adopting child).
40. Emily Doskow, The Second Parent Trap: Parenting for Same-Sex Couples in a Brave New World, 20
J. JUV. L. 1, 5 (1999) (defining second parent adoption). Second parent adoption refers to an adoption
“whereby a child born to one partner is adopted by his or her non-biological or non-legal second parent, with
the consent of the legal parent, and without changing the latter’s rights and responsibilities.” Id.
41. See Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the
Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459, 522 (1990) (stating
general adoption requirements). Customarily, adoption statutes require termination of parental rights before
another person may adopt that child. Id. Second parent adoptions typically occur when a child’s heterosexual
parents do not marry and establish paternity, or when a homosexual parent wants to adopt the biological or
adoptive child of her partner. Suzanne Bryant, Second Parent Adoption: A Model Brief, 2 DUKE J. GENDER L.
& POL’Y 233, 233 (1995) (discussing why state adoption laws allow homosexual second parents to adopt).
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Second parent adoptions protect nonbiological same-sex parents by ensuring a
continued parental relationship with the child if the couple separates or if the
biological parent dies.42 This legal parent designation also creates a mandatory
obligation to support the adopted child in the event the relationship
terminates.43
Currently, California, Connecticut, and Vermont are the only states that
expressly permit second parent adoptions by statute.44 A number of state
appellate and trial courts, however, have interpreted their adoption statutes to
permit second-parent adoptions.45 If state law prohibits second-parent
adoptions or a same-sex partner chooses not to adopt, an obligation of child
support may be grounded on statutes that specifically hold former partners
liable for child support when the child is born during a civil union or domestic
partnership.46
b. Presumed Parentage
Under state law, a husband is presumed the father of any child born during
42. Momjian, supra note 11, at § 3 (setting forth protections provided by second parent adoptions).
Adoption creates a legal parent-child relationship, thus conferring all the rights and responsibilities of
parenthood to the adopting parent under state statutes. See id. at § 4.
43. Momjian, supra note 11, at § 4 (examining liability associated with legal parenthood).
44. National Center for Lesbian Rights, Adoption by Lesbian, Gay and Bisexual Parents: An Overview of
Current Law, [hereinafter NCLR] available at http://www.nclrights.org/publications/adptn0204.htm, II(B) (last
visited Nov. 17, 2005); see also CAL. FAM. CODE § 9000(b) (West Supp. 2005) (allowing same-sex domestic
partners to adopt partner’s child); CONN. GEN. STAT. § 45a-724(a)(3) (2004) (permitting partner sharing
parental responsibility to adopt child); VT. STAT. ANN. tit. 15A, § 1-102(b) (2002) (legalizing partner’s
adoption of child if in child’s best interest of child). Florida, Mississippi, and Utah, however, specifically
prohibit adoption by same-sex partners. See FLA. STAT. ANN. § 63.042(3) (2005) (prohibiting homosexuals
from adopting); MISS. CODE ANN. § 93-17-3(2) (West Supp. 2004) (forbidding adoption by couples of same
gender); UTAH CODE ANN. § 78-30-1(3)(b) (2002) (outlawing adoption by “cohabiting” unmarried persons).
45. See, e.g., Sharon S. v. Super. Ct., 73 P.3d 554, 570 (Cal. 2003) (holding second parent adoptions valid
under independent adoption laws); In re Adoption of M.M.G.C., 785 N.E.2d 267, 270 (Ind. Ct. App. 2003)
(concluding common law permits second parent adoption without divesting rights of first adoptive parent);
Adoption of Tammy, 619 N.E.2d 315, 321 (Mass. 1993) (stating second parent adoption allowable when
natural parent is party to joint adoption). But see, e.g., In re Adoption of T.K.J., 931 P.2d 488, 492 (Colo. Ct.
App. 1996) (concluding lesbian adoption of partner’s child terminates partner’s rights and duties to child); In re
Adoption of Luke, 640 N.W.2d 374, 378 (Neb. 2002) (determining child ineligible for adoption without
relinquishment of parental rights); In re Angel Lace M., 516 N.W.2d 678, 683 (Wis. 1994) (holding adoption
statute mandates termination of parental rights upon adoption of minor).
States in which trial courts have granted second parent adoptions include: Alabama, Alaska, Delaware, Hawaii,
Iowa, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, and
Washington. NCLR, supra note 44. One reason so many states have read their adoption statutes to permit
second parent adoption is based on the overreaching purpose of adoption statutes: “to serve the best interests of
children by creating emotional and economic security.” Logue, supra note 13, at 112 (articulating reasoning
courts use to interpret adoption statutes liberally). Many courts have avoided literal interpretation of adoption
statutes, which may require the biological parent to relinquish parental rights before another person may adopt
the child, in favor of construing adoption statues so as to accomplish their overriding purpose. See id. at 11213.
46. See infra Part II.B.1.b.
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his marriage and, as such, has a legal duty of child support.47 Generally, this
presumption affects two types of husbands:
those whose wives are
impregnated by another and the children are born during the marriage, and
those whose wives are impregnated through Artificial Insemination by Donor
(AID).48 Many state legislatures have enacted statutes to address the parentage
issues associated with the use of assisted reproductive technology by couples
and single persons.49 More specifically, most states have enacted statutes
holding husbands who consent to artificial insemination by donor liable for
support because they are considered the legal fathers of any children born.50
While historically presumption statutes have only applied to heterosexual
married couples, the advent of civil unions and domestic partnerships in a
minority of states has extended the presumption to same-sex partners. 51
47. See Nolan, supra note 19, at 11-12 (summarizing presumption making husbands legal fathers of
children born to marriage); CAL. FAM. CODE § 7611 (West Supp. 2002) (presuming husband natural father if
requisite conditions met). In most jurisdictions the presumption is rebuttable. Nolan, supra note 19, at 11-12;
see also VT. STAT. ANN. tit. 15, § 308 (2002) (stating conditions rebuttably presuming natural parent of child).
48. Nolan, supra note 19, at 12 (discussing legal fathers of non-biological children). Artificial
insemination is the process by which male semen is transferred to the body of a woman for the purpose of
making her pregnant. CHARLES P. KINDREGAN, JR. & MONROE L. INKER, 1 MASS. PRAC., FAMILY LAW AND
PRAC. § 24:2 (Supp. 2005). There are two types of artificial insemination: (1) artificial insemination by
husband (“AIH”) (also known as homologous insemination), where a married woman is inseminated with the
sperm of her husband, and (2) artificial insemination by donor (“AID”) (also known as heterologous
insemination), where a woman is inseminated using semen of a donor who is not her husband. Michael J.
Yaworsky, Annotation, Rights and Obligations Resulting from Human Artificial Insemination, 83 A.L.R. 4th
295, § 2 (1991) (discussing process of artificial insemination and different types of donors). Donor
insemination usually raises various legal issues regarding the status, rights and obligations of the husband. Id.
49. Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional
Approach to Parentage, 53 HASTINGS L.J. 597, 599 (2002) (discussing how courts and legislatures address
parentage issues arising from use of assisted reproduction technology). The use of assisted reproductive
technology, including surrogacy and artificial insemination, creates the possibility that a child could have as
many as eight parents under various parentage laws: “the egg donor, the sperm donor, their spouses, the
surrogate and her husband, and the intending mother and father.” Id. at 602.
50. See, e.g., ALA. CODE § 26-17-21(a) (1992) (treating husband as natural father when he consents to
wife’s artificial insemination by donor); ARIZ. REV. STAT. ANN. § 25-501(B) (2004) (entitling child born by
artificial insemination to support from mother and mother’s spouse); FLA. STAT. ANN. § 742.11 (West 1997)
(presuming irrebuttably husband and wife parents to child born through artificial insemination; see also infra
text accompanying notes 63-68 (discussing imposition of child support obligations based on equitable
principles).
Courts have recognized that a husband’s oral consent or conduct can constitute an implied agreement to support
any child born to his wife by artificial insemination, even in cases where the state statute requires the written
consent of the husband in order to hold him liable for the obligations of parenthood. See Brown v. Brown, 125
S.W.3d 840, 844 (Ark. Ct. App. 2003) (estopping husband from denying support when he knew artificial
insemination procedure performed on wife); R.S. v. R.S., 670 P.2d 923, 927-28 (Kan. App. 1983) (consenting
orally to wife’s insemination created implied agreement to support child); In re Baby Doe, 353 S.E.2d 877,
878-79 (S.C. 1987) (refusing to relieve husband of support obligation for not giving statutorily required written
consent).
51. See CAL. FAM. CODE § 297.5 (West Supp. 2005) (granting registered domestic partners same rights
and obligations as traditional spouses under California law); see also VT. STAT. ANN. tit. 15, § 1204 (2002)
(affording same rights and liabilities to civil union parties as those applicable to spouses). Discussion of the
applicability of presumed parentage statutes to same-sex marriages is not included in the text because only one
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Currently, only a limited number of states provide significant statutory
protections for same-sex couples: Vermont and Connecticut provide civil
unions, Hawaii offers reciprocal beneficiary relationships, and California,
Maine, and New Jersey provide domestic partnership registries.52 Although all
of the aforementioned states provide significant state-conferred rights and
responsibilities for same-sex couples, only Vermont, Connecticut and
California currently address child custody and support issues with respect to
same-sex relationships.53
For example, the Vermont civil union statute dictates that the rights of samesex parties, “with respect to a child of whom either becomes the natural parent
during the term of the civil union, shall be the same as those of a married
couple. . .”54 Under Vermont’s presumed parentage statute, a husband is
considered the natural parent of a child born to his wife while they are legally
married to each other.55 Thus, in the event that a child is born to one of the
parties involved in a Vermont civil union, the party without a biological
connection to the child may still be liable for child support.56 A same-sex
state, Massachusetts, currently allows for same-sex marriages, and has only done so through the judiciary—not
the legislature. See generally Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) (holding
prohibition of same-sex individuals from civil marriage violates Massachusetts Constitution). Massachusetts
courts, however, will likely interpret state statutes regarding the parentage of a husband who consents to his
wife’s artificial insemination, and other presumed parentage statutes, to include legally married same-sex
couples. See id. at 969-70 (limiting opinion to declaration of law violation and deferring to legislature for
action).
52. A White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and Domestic
Partnerships, 38 FAM. L.Q. 339, 379 (2004) [hereinafter White Paper] (examining statutory protections and
rights for same-sex couples); William Yardley, Connecticut Approves Civil Unions for Gays, N.Y. TIMES, Apr.
21, 2005, at B5 (discussing Connecticut statute permitting civil unions).
It is unclear what impact the laws in California, Hawaii, New Jersey, Connecticut and Vermont—and
Massachusetts same-sex marriages—will have on the rest of the nation. But cf. Defense of Marriage Act, 1
U.S.C. § 7 (2000) (prohibiting terms “marriage” and “spouse” under federal law to consider same-sex
relationships). The provisions of the Federal Defense of Marriage Act (DOMA) prevent any federal statute
pertaining to marriage or spouses to apply to same-sex relationships, and allow states to disregard any act,
record, or judicial proceeding of another state that treats the relationship between same-sex persons as a
marriage. See 1 U.S.C. § 7 (2000); 28 U.S.C. § 1738C (2000) (stating provisions of DOMA). Although the
Constitution requires each state to give “full faith and credit” to the laws of the other states, DOMA expressly
undercuts this requirement. Compare U.S. CONST. art. IV, § 1 (stating each state shall give full faith and credit
to Acts of other states) with 28 U.S.C. § 1738C (2000) (stating provisions of DOMA).
53. See 2005 Conn. Acts 10 §14 (effective Oct. 1, 2005) (stating parties to civil union will have same
rights
as
granted
to
spouses
of
marriage),
available
at
http://www.jud.state.ct.us/lawlib/Notebooks/Pathfinders/CivilUnions.htm; White Paper, supra note 52, at 38183 (discussing rights and liabilities afforded same-sex couples in various statutes throughout United States).
54. VT. STAT. ANN. tit. 15, § 1204(f) (2002). The statute begins by stating, “[p]arties to a civil union
shall have all the same benefits, protections and responsibilities under law, whether they derive from statute,
administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a
marriage.” Id. at § 1204(a).
55. See VT. STAT. ANN. tit. 15, § 308(4) (2002) (imposing presumption of parentage when child born
during marriage).
56. See VT. STAT. ANN. tit. 15, § 1204(a) (2002) (providing same benefits to same-sex couples as to
heterosexual married couples); supra notes 54-55 and accompanying text (discussing presumption applicable to
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partner involved in a civil union in Connecticut or registered as a domestic
partner in California would be similarly liable for support of any child born
during the legal relationship.57 While Vermont, California, and Connecticut
statutorily tackle the issue of a same-sex partner’s liability for child support for
any child born of the relationship, the majority of states do not, leaving the
issue for state judiciaries to decide.58
C. Equitable Imposition of Child Support
In the absence of a legislative mandate, the few family courts that have
confronted the issue of whether to impose a child support obligation on a
former domestic partner have turned to equitable principles, “taking advantage
of the inherent flexibility of the doctrine and its usage in a wide variety of
family law contexts. . .”59 Many of the equitable principles courts consider
today are similar to those articulated in past decisions regarding the liability of
a husband who consents to his wife’s artificial insemination.60 As such, an
examination of previous court decisions addressing a husband’s liability for
child support will be discussed before an examination of the current case law
dealing with the liability of same-sex partners for child support.61
1. Cases Concerning Heterosexual Couples
Before the widespread enactment of statutes imposing a support obligation
on husbands who consent to their wives’ artificial insemination, courts
typically held these husbands responsible for support, relying on common-law
contract theories, public policy considerations, and the doctrine of equitable
estoppel.62 In People v. Sorensen,63 a California court held a husband, who
husbands also applicable to same-sex couples in Vermont). Note that this presumption can be rebutted. See
VT. STAT. ANN. tit. 15, § 308 (2002).
57. See CAL. FAM. CODE § 297.5 (West Supp. 2005) (describing rights and protections afforded to
registered domestic partners); CAL. FAM. CODE § 7613 (West 2004) (consenting husband to artificial
insemination of wife presumed legal father of child born); CONN. GEN. STAT. § 45a-774 (West Supp. 2005)
(stating child born of AID shall acquire same rights as naturally conceived child); 2005 Conn. Acts 10 §14
(effective Oct. 1, 2005) (granting same rights/protections to civil union parties as granted to marital spouses),
available at http://www.jud.state.ct.us/lawlib/Notebooks/Pathfinders/CivilUnions.htm.
58. See supra notes 52-57 and accompanying text (addressing limited number of statutes that apply
parenthood presumptions to certain same-sex relationships).
59. Momjian, supra note 25, at 104-05 (discussing courts’ use of equitable principles when support
statutes do not apply).
60. See Karin T. v. Michael T., 484 N.Y.S.2d 780, 783-84 (N.Y. Fam. Ct. 1985) (analogizing lesbian
partner’s conduct in bringing child into world with husband’s conduct in AID case Gursky v. Gursky, 242
N.Y.S.2d 406 (N.Y. Sup. Ct. 1963)).
61. See Part II.C.1.-Part II.C.2.
62. See People v. Sorensen, 437 P.2d 495, 499-500, 501 (Cal. 1968) (legitimizing child born by
insemination on public policy grounds and holding husband liable for support); Levin v. Levin, 645 N.E.2d
601, 604-05 (Ind. 1994) (estopping husband from denying support obligation because his consent to
insemination constituted promise to support); Anonymous v. Anonymous, 246 N.Y.S.2d 835, 837 (N.Y. Sup.
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consented to his wife’s artificial insemination, liable for support because his
conduct was integral in producing the child.64 The court reasoned that, “[o]ne
who consents to the production of a child cannot create a temporary relation to
be assumed and disclaimed at will, but the arrangement must be of such
character as to impose an obligation for whose existence he is directly
responsible.” 65 In a similar case, a New York court in Gursky v. Gursky,66
equitably estopped a husband from denying his child support obligation
because the husband’s consent to his wife’s artificial insemination implied his
promise to furnish support for the child.67 To support its finding that the
husband impliedly promised to support the child, the Gursky court noted that
the husband agreed to his wife’s conception via artificial insemination, both
parties signed the consent form, and the husband paid for the procedure.68
Even in the absence of a marital tie, courts may consider the intent and
conduct of the parties to determine whether a former partner or cohabitant, with
no biological connection to a child, is liable for support.69 In In re Parentage
Ct. 1964) (finding husband’s consent to wife’s insemination implied promise to support children born from
procedure); Gursky v. Gursky, 242 N.Y.S.2d 406, 412 (N.Y. Sup. Ct. 1963) (estopping husband from denying
support after consenting to wife’s insemination); L.M.S. v. S.L.S., 312 N.W.2d 853, 855 (Wis. Ct. App. 1981)
(holding husband’s consent implied a promise to accept child as own, estopping denial of support); Brief of
Plaintiff-Appellant at 36-38, T.F. v. B.L. 813 N.E.2d 1244 (Mass. 2004) (No. SJC-09104) (on file with author)
(discussing previous court decisions imposing support obligation on husbands lacking biological connection to
child).
In general terms, “equitable estoppel is an [sic] remedy available if one party through his course of conduct
knowingly misleads or induces another party to believe and act upon his conduct in good faith without
knowledge of the facts.” Levin, 645 N.E.2d at 604.
63. 437 P.2d 495 (Cal. 1968).
64. Sorenson, 437 P.2d at 499 (explaining husband cannot deny his support obligation to child he helped
bring into the world).
65. Id.
66. 242 N.Y.S.2d 406 (N.Y. Sup. Ct. 1963).
67. Gursky, 242 N.Y.S.2d at 412 (holding husband liable for support because of wife’s reliance on
husband’s consent to AID); see also Anonymous, 246 N.Y.S.2d at 836-37 (following Gursky in finding implied
promise of support originating from husband’s consent). Specifically, the Gursky court held
The ‘consent’ was in its terms a request to the physician to conduct the artificial insemination for the
express purpose of providing a child for the mutual happiness of the parties. There is nothing in the
record to indicate that the wife would have undergone artificial insemination in the absence of the
husband’s consent. Hence it is reasonable to presume that she was induced so to act and thus
changed her position to her detriment in reliance upon the husband’s expressed wishes. To relieve
the husband of any duty of furnishing support for the child resulting from the artificial insemination
of the wife, to which she submitted in reliance on her husband’s wishes, would cast a financial
burden upon the wife which in equity and conscience should be borne by the husband.
Gursky, 242 N.Y.S.2d at 411-12.
68. Gursky, 242 N.Y.S.2d at 408 (explaining factual context forming basis for courts holding).
69. See In re Parentage of M.J., 787 N.E.2d 144, 152 (Ill. 2003) (explaining boyfriend’s conduct in
causing birth of children makes him liable for support); Nolan, supra note 19 at 37 (arguing lack of marital tie
should not preclude imposing support obligation based on person’s conduct).
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of M.J.,70 the Illinois Supreme Court concluded that liability for child support
may be imposed based on common law theories of oral contract and estoppel. 71
In M.J., a man encouraged his long-term girlfriend to become pregnant by
means of artificial insemination after attempts by the couple to conceive
naturally failed.72 Supporting its decision, the court stated
[I]f an unmarried man who biologically causes conception through sexual relations
without the premeditated intent of birth is legally obligated to support a child, then the
equivalent resulting birth of a child caused by the deliberate conduct of artificial
insemination should receive the same treatment in the eyes of the law. Regardless of
73
the method of conception, a child is born in need of support.
2. Cases Concerning Homosexual Couples
Unlike the aforementioned cases estopping husbands and boyfriends from
denying a support obligation, courts considering a former same-sex partner’s
liability for child support generally only estop the partner if she first petitions
for visitation or custody rights via status as a “de facto” parent.74 In one of the
leading appellate cases involving a former partner’s obligation to pay child
support, L.S.K v. H.A.N.,75 the Pennsylvania Superior Court held that a former
lesbian partner was equitably estopped from denying support after she had filed
70. 787 N.E.2d 144 (Ill. 2003).
71. Id. at 152 (holding Illinois Parentage Act presents no bar to common law parentage theories).
72. Id. at 146 (describing factual context of case). The girlfriend claimed that Raymond, her boyfriend
and the defendant, promised to provide financial support for any child born by artificial insemination. Id.
Raymond did not give his written consent to his girlfriend’s artificial insemination and thus the court would not
consider whether Raymond was liable for child support under the Illinois Parentage Act. Id. at 150. The court,
however, found that Raymond’s “conduct evince[d] a powerful case of actual consent” and held the Illinois
Parentage Act did not bar Raymond’s girlfriend from petitioning for child support based on common law
theories of oral contract or promissory estoppel. Id. at 152.
73. Id. (reasoning via analogy to biological conception).
74. Compare L.S.K. v. H.A.N., 813 A.2d 872, 878 (Pa. Super. Ct. 2002) (pursuing custody of children
prevents same-sex partner from denying child support obligation), and Chambers v. Chambers, No. CN0009493, 2002 WL 1940145, at *10 (Del. Fam. Ct. Feb. 5, 2002) (noting injustice in imposing support obligation
on lesbian partner who already obtained visitation order) with State ex rel. D.R.M., 34 P.3d 887, 895 (Wash. Ct.
App. 2001) (explaining failure of partner to pursue custody/visitation makes equitable estoppel doctrine
unavailable). But see Chambers v. Chambers, No. CN00-09493, 2002 WL 1940145, at *10 (Del. Fam. Ct. Feb.
5, 2002) (holding same-sex partner liable for support as “parent” under state support statute).
The ALI defines a “de facto parent” as an individual other than a legal parent or a parent-by-estoppel who, for a
significant period of time and with the agreement of the legal parent, lived with the child and performed a share
of the caretaking functions at least as great as that of the legal parent. P RINCIPLES, supra note 13, at §
2.03(1)(c). Following the recommendations the ALI Principles described, a number of courts have held that
“de facto” parents have standing to petition for visitation and or custody rights of their former partner’s child.
See E.N.O. v. L.M.M., 711 N.E.2d 886, 891-93 (Mass. 1999) (using ALI’s definition of “de facto” parent in
awarding former partner temporary visitation); Kyle C. Velte, Towards Constitutional Recognition of the
Lesbian-Parented Family, 26 N.Y.U. REV. L. & SOC. CHANGE 245, 260 (2000-2001) (discussing trend among
courts giving standing to non-legal lesbian mothers raising custody and visitation claims).
75. 813 A.2d 872 (Pa. Super. Ct. 2002).
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a complaint for custody of the five children born during her prior relationship. 76
L.S.K. and H.A.N. agreed to have children together by artificial insemination,
with L.S.K. acting as the birth mother.77 After the births of all five children,
H.A.N. helped select the childrens’ names and stayed at home with them when
L.S.K. returned to work.78
After the couple separated, H.A.N. filed a complaint for custody of the
children, and L.S.K. filed a complaint seeking child support.79 In equitably
estopping H.A.N. from denying a support obligation, the court primarily
followed the trial court’s decision during the trial’s custody phase that H.A.N.
stood in loco parentis to the five children.80
[E]quity mandates that H.A.N. cannot maintain the status of in loco parentis to
pursue an action as to the children, alleging she has acquired rights in relation
to them, and at the same time deny any obligation for support merely because
there was no agreement to do so. Although statutory law does not create a legal
relationship, applying equitable principles we find that in order to protect the
best interest of the children involved, both parties are to be responsible for the
81
emotional and financial needs of the children.
In a Delaware case with facts similar to L.S.K., a family court judge held that
a former partner, who petitioned for and received an enforceable visitation
order, was equitably estopped from asserting that she had no obligation to
support the child.82
76. Id. at 878 (holding equity and best interests of child mandate imposition of support).
77. Id. at 874-75 (laying factual foundation and procedural history). The couple was involved in a
romantic relationship from the mid 1980s until 1997. Id. at 874. L.S.K. gave birth to their first child, a son, in
1990. Id. In 1992, the couple decided to have more children. Id. at 875. Although it was originally agreed
that H.A.N. would bear the second child, a medical condition prevented her from doing so. Id. L.S.K.,
therefore, was artificially inseminated once again using sperm from an anonymous donor and became pregnant
with quadruplets. Id. L.S.K. gave birth to the quadruplets in March of 1993. Id.
78. Id. at 874-75, 878 (discussing H.A.N.’s participation in conception and raising of five children).
79. L.S.K. v. H.A.N., 813 A.2d 872, 875 (Pa. Super. Ct. 2002) (noting complaints each party filed after
couple separated). Following the couple’s separation in 1997, L.S.K.’s employer transferred her from
Pennsylvania to San Diego and she moved the children with her. Id. H.A.N. remained in Pennsylvania and
filed a complaint for custody in 1998. Id. The trial court entered an order granting each party legal custody of
the children and partial physical custody to H.A.N. during the summers and school breaks. Id.
80. Id. at 878 (articulating reasons why equitable estoppel applies to facts of case). In loco parentis
“refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to
the parental relationship without going through the formality of a legal adoption.” Id. at 876 (quoting T.B. v.
L.R.M., 786 A.2d 913, 916 (Pa. 2001)). H.A.N.’s status as in loco parentis allowed her to have standing to
petition for custody of the children. See PRINCIPLES, supra note 13, at § 2.03(1)(c) (discussing rights afforded
to de facto parents, a status similar to in loco parentis).
81. Id. at 878.
82. Chambers v. Chambers, No. CN00-09493, 2002 WL 1940145, at *10 (Del. Fam. Ct. Feb. 5, 2002)
(imposing support obligation through exercise of court’s equitable powers). The court also held that the samesex partner was liable for child support because she satisfied the definition of “parent” under the state child
support statute. Id. (including same-sex parental status within reach of Delaware’s support statute).
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Where a former partner has not petitioned first for custody or visitation
rights, courts are seemingly unwilling to impose an obligation of support.83 In
State ex. rel. D.R.M.,84 a Washington appeals court refused to impose a child
support obligation on a former lesbian partner who never lived with or parented
the child born to her partner.85 In D.R.M., Kelly McDonald and Tracy Wood
decided to have a child after several years of living together.86 Kelly became
pregnant after more than a year of trying artificial insemination, but the couple
separated before discovering the pregnancy.87 When the pregnancy was
discovered, Tracy offered to help financially support the child and did so until
the child was ten months old.88
After Kelly began receiving public assistance, the State filed a petition to
establish Tracy as the child’s parent and to impose an obligation of support. 89
In refusing to impose a support obligation on Tracy, the court stated that
equitable estoppel was not applicable because the State was not arguing that
Tracy had asserted parenthood, but rather that she agreed to become a parent
and did not follow through on this agreement.90 The court also refused to estop
83. See T.F. v. B.L., 813 N.E.2d 1244, 1248, 1253 (Mass. 2004) (failing to find partner liable for support
because legal stranger to child); State ex rel. D.R.M., 34 P.3d 887, 890 (Wash. Ct. App. 2001) (concluding
equitable estoppel not applicable to impose support because former partner not parent to child).
84. 34 P.3d 887 (Wash. Ct. App. 2001).
85. Id. at 890 (holding former partner not liable for child support).
86. Id. The couple received counseling from a family practice physician on artificial insemination and
pre-pregnancy planning. Id. From these counseling sessions, the parties learned that Kelly would be the legal
parent of the child born to her, but Tracy would have to adopt the child in order to become the child’s legal
parent. Id. Thus, the parties agreed that Tracy would adopt Kelly’s child assuming artificial insemination
proved successful. Id.
87. Id. After learning that Kelly was pregnant, the parties unsuccessfully attempted to reconcile by
attending counseling. Id.
88. State ex rel. D.R.M., 34 P.3d at 890. Tracy offered to make child support payments to Kelly, the
amount to be renegotiated after two and a half years. Id. After the child was born, Kelly limited Tracy’s access
to the child, inhibiting the parties from reaching a coparenting agreement or Tracy from adopting. Id.
89. Id. at 890-91 (discussing state’s involvement in bringing action against former same-sex partner). The
State asserted that “‘[t]his case is not about custody or visitation. The only issue in this case is whether a duty
to support a child (as a parent) can be imposed upon a non-biologically related person whose direct actions,
intent, and financial support resulted in the birth of the child.’” Id. at 891 (quoting from State’s appellate brief).
Alternatively, Tracy argued that she is not a parent and thus cannot be held liable for the support of the child
born to her former partner. Id.
90. State ex rel. D.R.M., 34 P.3d 887, 895 (Wash. Ct. App. 2001) (noting equitable estoppel only
available as shield or defense). The court concluded that if, as the State’s argument suggested, Tracy “agreed
to become a parent and to pay future support,” only promissory rather than equitable estoppel would be
available to Kelly. Id. The court also distinguished the case from Karin T. v. Michael T., in which a New York
court held that Michael, a woman who was living as a man, was equitably estopped from denying liability for
child support based on her conduct before and after the birth of the children. See id. at 896-97 (distinguishing
present case from case applying equitable estoppel to impose support obligation). In Karin T., the state sought
support from Michael T., known previously as Marlene, who decided to have children with her same-sex
partner, Karin. Karin T. v. Michael T., 484 N.Y.S.2d 780, 781 (N.Y. Fam. Ct. 1985) (providing background
information). Karin and Michael obtained a marriage license and participated in a marriage ceremony, even
though Michael was biologically a female. Id. When the couple decided to have children by artificial
insemination, Michael signed an agreement indicating that she was the husband, and waiving her right to
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Tracy from denying promises to adopt or to support the child because Kelly
could not have justifiably relied on these promises.91
Other states refuse to enforce contracts that impose parenthood as contrary
to public policy.92 The Supreme Judicial Court in T.F. v. B.L. adopted this rule,
holding a former partner’s promise to parent unenforceable.93 In deciphering
Massachusetts public policy the court reasoned, “to protect the freedom of
personal choice in matters of marriage and family life, prior agreements to
enter into familial relationships (marriage or parenthood) should not be
enforced against individuals who subsequently reconsider their decisions.” 94
The majority also refused to impose an obligation on B.L, the former partner,
by way of equity, leaving it up to the Legislature to establish whether a former
partner under these circumstances should have a legal obligation to support the
child.95
disclaim the children as her own. Id. at 781-82. Relying on the analysis of another case, the court in Karin T.
found that Michael’s signature consenting to the insemination of Karin was a request to the physician to
conduct the procedure for the express purpose of providing children, and therefore Michael should be equitably
estopped from denying support. Id. at 783-84 (analogizing case to Gursky v. Gursky, 242 N.Y.S.2d 406 (N.Y.
Sup. Ct. 1963)); see also supra Part II.C.1 (discussing use of equity to estop heterosexual individuals from
denying support when conduct produced child).
91. State ex rel. D.R.M., 34 P.3d 887, 895 (Wash. Ct. App. 2001) (discussing state’s promissory estoppel
argument). The five prerequisites for a cause of action in promissory estoppel are: “(1) a promise which (2)
the promisor should reasonably expect to cause the promisee to change his position and (3) which does cause
the promisee to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice
can be avoided only by enforcement of the promise.” Id. The court reasoned that the state could not prove the
fourth prerequisite because any reliance Kelly had on Tracy’s promises was unjustified because both parties
understood that for Tracy to have any legal rights, a second-parent adoption was necessary. Id.
92. T.F. v. B.L., 813 N.E.2d 1244, 1251 (Mass. 2004) (explaining Massachusetts’s public policy prevents
enforcement of contract binding person to parenthood).
93. Id. at 1246 (finding no liability for lesbian partner even though court found implied agreement among
parties); see also supra notes 2-6 and accompanying text (discussing factual context in which case arose).
While the majority in T.F. supported the trial judge’s finding that B.L. had promised T.F. to parent T.F.’s child
and thus created a contract, the court held that enforcing a contract to parent violated public policy. T.F., 813
N.E.2d at 1249-51 (holding “parenthood by contract” not law in Massachusetts). The majority in T.F.
concluded that “in order to protect the ‘freedom of personal choice in matters of marriage and family life’ . . .
‘prior agreements to enter into familial relationships (marriage or parenthood) should not be enforced against
individuals who subsequently reconsider their decisions.’”
94. Id. at 1251 (internal citations omitted). The court also refused to enforce any implied promise to
support the child because such a promise was not severable from the unenforceable contract to parent. Id. at
1251-52. Although the dissent agreed with the majority that parenthood by contract was not recognized in
Massachusetts, it concluded the unenforceable promise to parent implied a promise to support the child, which
was enforceable under the court’s equity jurisdiction. Id. at 1258 (Greaney, J., concurring in part and
dissenting in part) (granting relief via equity jurisdiction when necessary for best interests of child).
Accordingly, the dissent reasoned, “[t]he existence of an agreement to support on the part of the defendant,
buttressed by society’s interests (as expressed through statutes and our case law) and the best interests of the
child standard, requires relief here.” Id. at 1257.
95. Id. at 1254 (refusing to impose support obligation on person not considered parent under statute). The
court noted that B.L. did not become a de facto parent by virtue of a long-standing relationship with the child,
which indicates that such a status may have allowed the court to impose a support obligation on B.L.. See id. at
1253; cf. E.N.O v. L.M.M., 711 N.E.2d 886, 892 (Mass. 1999) (allowing former same-sex partner visitation
rights based on her de facto parent status). But see T.F., 813 N.E.2d at 1253 n.12 (expressing no opinion on
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These cases from Pennsylvania, Delaware, Washington and Massachusetts
illustrate that courts are generally unwilling to impose a child support
obligation when a former partner has not asserted herself as a parent or when
there has been no actual parental relationship.96 In refusing to impose liability,
many courts reason that a support obligation would be unfair to the former
partner because she would not have access to other parental rights.97 The ALI,
however, addresses this issue and others in its recommendations on the
imposition of child support.98
D. American Law Institute Recommendations for Child Support
The American Law Institute recommends imposing a support obligation on a
person whose conduct should estop her denial of parental support, despite not
falling within a state’s definition of parent.99 According to the ALI principles,
such estoppel may arise only when:
(a) [T]here was an explicit or implicit agreement or undertaking by the person
to assume a parental support obligation to the child; (b) the child was born
during the marriage or cohabitation of the person and the child’s parent; or (c)
the child was conceived pursuant to an agreement between the person and the
child’s parent that they would share responsibility for raising the child and each
100
would be a parent to the child.
A person who is held liable for child support under this section is referred to
as a “parent-by-estoppel.”101
issue of de facto parent’s support obligation because no yet considered).
96. See supra Part II.C.2 (discussing case law on liability of same-sex partner to pay child support).
97. See T.F. v. B.L., 813 N.E.2d 1244, 1252 n.10 (Mass. 2004) (articulating concerns for imposing
support obligation independent of parenthood); State ex rel. D.R.M., 34 P.3d 887, 894 (Wash. Ct. App. 2001)
(refusing to create new cause of action holding “intended parent” liable for support).
98. See PRINCIPLES, supra note 13, at § 2.03(b), § 3.03 (addressing custodial considerations and child
support obligations for “parent by estoppel”).
99. PRINCIPLES, supra note 13, at § 3.03(1) (explaining use of estoppel to impose parental support
obligation). According to the ALI chapter on child support, a parent who is liable for child support may
include any person defined as a parent under state law (including biological, adoptive parents, and any person
determined to be a parent by virtue of an unrebutted legal presumption of parentage), as well as persons whose
conduct equitably estops them from denying a parental support obligation. Id. at § 3.02, cmt. b.
100. PRINCIPLES, supra note 13, at § 3.03(1)(a)-(c) (describing factual instances in which person estopped
from denying support obligation). The ALI limits these instances through standing—only child and parent
have standing Id. at § 3.03(1). A court should consider the following factors to determine whether to impose a
support obligation under § 3.03(1): (a) whether the person and child have a parent-child relationship, (b)
whether child’s relationship with person prevented the child from forming a relationship with absent biological
parent or seeking support from that parent, (c) whether the child otherwise has two parents that can provide
support, and (d) any other relevant facts that may allow the equitable imposition of child support on a person.
Id. at § 3.03(2). Finally, § 3.03(3) states that no obligation to support a child is triggered merely from a former
partner’s cohabitation with the child’s parent. Id. at § 3.03(3).
101. PRINCIPLES, supra note 13, at § 2.03(1)(b)(i) (defining “parent-by-estoppel”). Other individuals who
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Nowhere do ALI Principles state an agreement under this section must be in
writing.102 The Principles, however, do provide illustrations to demonstrate
various agreements that could make a person liable for child support as a
parent-by-estoppel.103 One illustration describes a lesbian couple, where one
partner, Madeleine, agrees to conceive a child by artificial insemination, and
the other, Margery, promises to support the family with her earnings.104 In this
scenario, if the couple later separates and Madeline petitions for child support
from Margery, the court, following the ALI Principles, should equitably estop
Margery from denying her support obligation to the children because they were
conceived pursuant to an agreement between the partners that both would act as
parents to the children born.105
Courts are not required to follow ALI principles and recommendations. 106
Many courts, however, will use them in determining the ultimate outcome of a
case.107 Applying these principles would allow a court to impose child support
obligations upon persons who may not be considered a parent under state law
but whose affirmative actions warrant a continuing support obligation to the
child.108
III. ANALYSIS
It is absurd that a biological connection mandates an obligation to support,
especially when a child was not intended or wanted, yet a person can actively
qualify as a “parent-by-estoppel” include three other situations: (1) someone who lived with the child for two
years believing that he was the child’s biological parent and fully accepted the responsibilities of parenthood,
(2) someone who lived with the child since the child’s birth, “holding out and accepting full and permanent
responsibilities as a parent” pursuant to a “coparenting agreement with the child’s legal parent,” or (3) someone
who lived with the child for at least two years, accepting full responsibilities of parenthood with legal parent’s
permission. Id. at § 2.03(1)(b) (defining other persons who may qualify as parent-by-estoppel).
102. T.F., 813 N.E.2d at 1258 n.5 (Greaney, J., concurring in part and dissenting in part) (noting absence of
writing requirement in ALI principles on parenthood-by-estoppel). The ALI Principles in chapter 2 suggest
that while no formal written agreement is required to create parenthood-by-estoppel, “the absence of formalities
may also affect the factfinder’s determination of whether an agreement was made.” See PRINCIPLES, supra
note 13, at § 2.03(b) comment b(iii) (referring to parental status pursuant to co-parenting agreement with legal
parent(s)).
103. See generally PRINCIPLES, supra note 13, at § 3.03 cmts. a-c (illustrating multiple scenarios which
may give rise to status as parent-by-estoppel).
104. PRINCIPLES, supra note 13, at § 3.03 cmt. c., Illustration 3 (discussing particular factual scenario
which imposes support obligation pursuant to ALI’s parenthood-by-estoppel).
105. PRINCIPLES, supra note 13, at § 3.03 cmt. c., Illustration 3. This type of agreement can be
distinguished from the type of agreement considered in § 3.03(1)(a), where a stepparent in rare cases may be
equitably estopped from denying support because of his or her affirmative behavior. See id. at § 3.03, cmt. b
(referring to agreements in which person assumes obligation for child already born). In most cases, however,
state law and the Principles impose no continuing child support obligation on stepparents. Id.
106. See T.F. v. B.L., 813 N.E.2d 1244, 1254 n.13 (Mass. 2004) (refusing to apply ALI principles, leaving
task of determining support obligation to Legislature).
107. See E.N.O. v. L.M.M., 711 N.E.2d 886, 891-93 (Mass. 1999) (using ALI’s definition of “de facto”
parent in awarding former partner temporary visitation).
108. Id. at § 3.03 cmt. a.
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participate in the conception of a child with the intent to parent and then walk
away because there is no biological tie.109 Imposing an obligation of support
on a same-sex partner who promises to parent a child born to her partner would
bring the contemporary environment in which children are conceived in line
with past court decisions and public policy considerations.110 As Justice
Greaney states in T.F. v. B.L., “[t]he child may have been abandoned by the
[former partner], but he should not be abandoned by the court.”111
A. Individuals Function as “Parents” when They Intend to Bring Children into
the World, “Irrespective of a Biological Connection.”112
Courts should apply the same reasoning used in heterosexual artificial
insemination cases to child support cases involving lesbian partners who have
consented to their partner’s impregnation by artificial insemination or have
demonstrated conduct evincing consent.113 Such reasoning is applicable to
same-sex couples even in the absence of a marital tie.114 Using common law
theories of oral contract and promissory estoppel, the Supreme Court of Illinois
109. See T.F., 813 N.E.2d at 1255 (Greaney, J., concurring in part and dissenting in part) (emphasizing
deliberateness in creating child warrants imposition of support on partner); see also In re Parentage of M.J.,
787 N.E.2d 144, 152 (Ill. 2003) (concluding method of conception irrelevant because child born in need of
support).
110. Compare T.F., 813 N.E.2d at 1247 (Mass. 2004) (demonstrating lesbian family situation from which
children are conceived via artificial insemination), and State ex rel. D.R.M., 34 P.3d 887, 890 (Wash. Ct. App.
2001) (describing lesbian partner’s active participation in impregnating girlfriend), with People v. Sorenson,
437 P.2d 495, 499 (Cal. 1968) (prohibiting husband who consents to production of child by artificial
insemination from disclaiming support obligation), and Gursky v. Gursky, 242 N.Y.S.2d 406, 411 (N.Y. Sup.
Ct. 1963) (interpreting husband’s consent and conduct respecting wife’s insemination as implied promise to
furnish child support). Recent studies indicate that an estimated fourteen million children have either a father
or mother who is gay. Chambers v. Chambers, No. CNOO-09493, 2002 WL 1040145, at *5 (Del. Fam. Ct.
Feb. 5, 2002) (discussing contemporary family dynamics). The Chambers court noted, “[a]lthough many of
these children were born when their parents were in heterosexual relationships, the last decade has seen a sharp
rise among lesbians and gays planning families through adoption, foster care, donor insemination, and other
reproductive technologies.” Id. In fact, many children live in a household with both biological and nonbiological same-sex parents. Logue, supra note 13, at 96 (describing types of “parents” involved in many
same-sex relationships with children).
111. T.F., 813 N.E.2d at 1258.
112. Brief of Plaintiff-Appellant at 36, T.F. v. B.L. 813 N.E.2d 1244 (Mass. 2004) (No. SJC-09104) (on
file with author) (mentioning previous court decisions imposing support obligation on persons lacking
biological connection to child).
113. Compare People v. Sorenson, 437 P.2d 495, 499 (Cal. 1968) (prohibiting husband consenting to
artificial insemination from disclaiming support obligation), and Gursky v. Gursky, 242 N.Y.S.2d 406, 411
(N.Y. Sup. Ct. 1963) (finding implied promise to furnish support from husband’s consent and conduct
respecting wife’s insemination), with T.F. v. B.L., 813 N.E.2d 1244, 1258 (Mass. 2004) (Greaney, J.,
concurring in part and dissenting in part) (noting unenforceable agreement to parent implicitly contains
enforceable promise to pay child support), and L.S.K. v. H.A.N., 813 A.2d 873, 878 (Pa. Super. Ct. 2002)
(using lesbian partner’s active participation in impregnating girlfriend to equitably estop her from denying
support). But see supra note 93 and accompanying text (stating why SJC deemed implied promise to support in
T.F. unenforceable).
114. See In re Parentage of M.J., 787 N.E.2d 144, 152 (Ill. 2003) (refusing to use marital status to bar
support obligation).
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in Parentage of M.J. held that the Illinois Parentage Act, which requires a
husband’s written consent to AID before imposing an obligation of support, did
not bar a mother’s claim for child support against her former boyfriend. 115
Thus, the basis for imposing an obligation on a same-sex partner would arise
from enforcing an oral or written promise to parent and support the child or
from the doctrine of equitable estoppel, when it can be shown that the partner
who conceived the child detrimentally relied on the other partner’s promise or
conduct.116
B. Public policy Considerations and the Obligation of Support
Public policy permits an unmarried partner, who intends to bring a child into
the world and consents to the insemination of her partner, to be held liable for
that child’s financial support.117 By enacting statutes that impose a legal
obligation on husbands who consent to their wives’ artificial insemination,
legislatures around the country have recognized the importance of intent in
determining a husband’s parental obligation when no biological connection to a
child exists.118 Constitutional mandates additionally require that children born
out of wedlock be afforded the same rights and protections from the law as all
other children.119 Combining these legislative and constitutional mandates
115. Id. (holding boyfriend’s deliberate conduct in producing children may render him liable for child
support).
116. Cf. Levin v. Levin, 645 N.E.2d 601, 604-05 (Ind. 1994) (estopping husband from denying support
obligation because consent to procedure constituted promise to support child); Anonymous v. Anonymous, 246
N.Y.S.2d 835, 837 (N.Y. Sup. Ct. 1964) (enforcing implied promise to support child resulting from husband’s
conduct and consent to insemination procedure); L.M.S. v. S.L.S., 312 N.W.2d 853, 855 (Wis. Ct. App. 1981)
(holding wife’s reliance on husband’s consent to artificial insemination estops husband from denying child
support). This conclusion is also in accord with the ALI’s recommendations for imposing support on persons
whose affirmative conduct equitably estops them from denying a support obligation. PRINCIPLES, supra note
13 at § 3.03(1) (defining conduct of persons which should estop them from denying support obligation); see
also supra Part II.D (discussing American Legal Institute’s recommendations for imposing child support).
117. See In re Parentage of M.J., 787 N.E.2d 144, 152 (Ill. 2003) (determining best interests of
children/society mandates imposition of support obligation on boyfriend); Chambers v. Chambers, No. CN0009493, 2002 WL 1940145, at *5 (Del. Fam. Ct. Feb. 5, 2002) (explaining child’s possible impoverishment if
nonparent not liable for support).
The public policy implications [of not holding same-sex partner liable for support] are enormous.
The court cannot imagine that the General Assembly would have intended David [the child] to be
thrown into poverty under the facts of this case. Rather, it is much more likely that it would have
expected an adult, who acted in tandem with her committed life partner to bring an infant into this
world, to support him as his ‘parent.’
Id.
118. See T.F., 813 N.E.2d at 1255 (Greaney, J., concurring in part and dissenting in part) (noting
legislative purpose clear with enactment of statute where parentage via AID determined by consent); see also
supra notes 49-50 and accompanying text (discussing statutes regarding husband’s legal obligations to child
born from artificial insemination).
119. Gomez v. Perez, 409 U.S. 535, 537-38 (1997) (prohibiting states from denying to illegitimate children
the benefits afforded to children generally); see also T.F., 813 N.E.2d at 1255 (Greaney, J., concurring in part
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offers a clear indication that public policy supports imposing an obligation of
support on an unmarried same-sex partner who has actively participated in the
conception of a child.120
Obligating a former partner to pay support sustains one of the primary
purposes behind child support statutes; that is, ensuring parents and not the
public support their children.121 Moreover “[e]ven when children are not in
danger of becoming public charges, society [still] has a strong interest in
assuring that adequate resources are devoted to the care, nutrition, and
education, and general well-being of the next generation of citizens.” 122
Imposing a support obligation on a former same-sex partner would provide
added security in ensuring that a child’s financial needs are being met, making
it more unlikely that the state would be called upon to support the child.123
C. Actual Parent-Child Relationship Not Required
While the limited case law demonstrates that courts typically only impose a
support obligation on a same-sex partner when a parental or de facto
relationship exists between partner and child, the existence of such a
relationship is not the criterion for a parent’s obligation to support a child. 124
On the contrary, child support focuses on the obligation to provide financial
support to protect a child’s physical health rather than psychological or
Moreover, Courts routinely impose support
emotional well-being.125
obligations on parents irrespective of the existence of an actual parent-child
and dissenting in part) (expounding children entitled to same protections from Massachusetts law regardless of
circumstance of their birth).
120. Brief of Plaintiff-Appellant at 29, T.F. v. B.L. 813 N.E.2d 1244 (Mass. 2004) (No. SJC-09104)
(arguing public policy requires support if partner consents to AID); see also supra note 117 (examining public
policy considerations examined in Chambers).
121. See Nolan, supra note 19 at 28-29 (describing how imposition of support on non-biological
cohabitants furthers policy protecting public purse); see also Elisa B. v. Super. Ct., 117 P.3d 660, 669 (Cal.
2005) (acknowledging preference of having two parents for emotional and financial support rather than public
support).
122. PRINCIPLES, supra note 13 at § 3.04 cmt. b (discussing objectives important in administering childsupport rules).
123. See T.F. v. B.L., 813 N.E.2d 1244, 1254 (Mass. 2004) (indicating child better off with two persons
providing support but legislature must impose obligation).
124. Brief of Plaintiff-Appellant at 39, T.F. v. B.L. 813 N.E.2d 1244 (Mass. 2004) (No. SJC-09104) (on
file with author) (explaining child support obligation not dependent on continuing relationship between parent
and child).
125. Id. (articulating child support created as financial rather than emotional obligation); see also
Commonwealth of Massachusetts, Child Support Guidelines (effective Feb. 15, 2002) (discussing principles
considered
in
establishing
support
guidelines),
at
http://www.mass.gov/courts/formsandguidelines/csg2002.html. The purposes underlying these guidelines
include: (1) minimizing the economic impact on the child of family breakup; (2) encouraging joint parental
support of children; and (3) meeting the child’s survival needs and providing the standard of living the child
would have enjoyed had the family been intact. Commonwealth of Massachusetts, Child Support Guidelines
(effective Feb. 15, 2002) at http://www.mass.gov/courts/formsandguidelines/csg2002.html.
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relationship.126 Thus, in cases like T.F, where the partner terminated her
relationship with the mother and child shortly after the child’s birth, the former
partner should not escape liability for support simply because she did not have
an ongoing relationship with the child.127
D. Concerns Addressed for Imposing Support on a Nonparent
Despite the fact that imposing a support obligation on a former partner is
within the power of the court, judges are concerned about the possible
ramifications of imposing such an obligation.128 This concern typically
revolves around the legal status of the person required to pay child support. 129
This concern, however, does not necessarily extend to partners who can
establish themselves as de facto parents, a status which may give them standing
to petition for visitation or custody rights, but rather it extends to those partners
who have not acted as parents.130 Following the ALI’s recommendations
regarding the custodial and decision-making consequences of imposing a child
support obligation on a former partner might alleviate these concerns.131
Under ALI principles, a person who is estopped from denying a child
support obligation because of his or her affirmative conduct in a child’s
conception is considered a parent-by-estoppel and afforded all the privileges of
a legal parent.132 In other words, if a legal parent successfully invokes the
126. See Elisa B. v. Super. Ct., 117 P.3d 660, 669-70 (Cal. 2005) (imposing support obligation
notwithstanding former partner’s unwillingness to act as parent); Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280,
290 (Cal. Ct. App. 1998) (assigning child support to non-biological intended parent regardless of current desire
to parent); Dep’t of Revenue v. Mason, 790 N.E.2d 671, 674-75 (Mass. 2003) (awarding child support where
father had no connection to child).
127. See supra notes 124-126 and accompanying text (discussing why on-going relationship not required
to impose obligation of support).
128. See State ex rel. D.R.M., 34 P.3d 887, 894 (Wash. Ct. App. 2001) (refusing to consider “intended
parent” cause of action because “intended parent” denied other parental rights); see also T.F. v. B.L., 813
N.E.2d 1244, 1252 n.10 (Mass. 2004) (articulating concerns for imposing support obligation independent of
parenthood). The T.F. court noted, “[g]iven the unprecedented nature of imposing a long-lasting support
obligation independent of parenthood, we have no recognized legal principles for determining the defendant’s
status.” T.F., 813 N.E.2d at 1252 n.10.
129. T.F., 813 N.E.2d at 1252 n.10. (predicting several possible legal implications of imposing child
support on non-parent). “For example, although the defendant voluntarily ceased visitation, would she have
visitation rights, or some right to resume contact with the child, that she could seek to enforce?” Id.
130. See E.N.O. v. L.M.M., 711 N.E.2d 886, 891-93 (Mass. 1999) (using ALI’s definition of “de facto”
parent in awarding former partner temporary visitation); L.S.K. v. H.A.N., 813 A.2d 872, 878 (Pa. Super. Ct.
2002) (pursuing custody of children prevents same-sex partner from denying child support obligation); State ex
rel. D.R.M., 34 P.3d 887, 895 (Wash. Ct. App. 2001) (failing to impose support obligation on partner who
never parented child); PRINCIPLES, supra note 13, at § 2.03(1)(c) (defining “de facto” parent); Kyle C. Velte,
Towards Constitutional Recognition of the Lesbian-Parented Family, 26 N.Y.U. REV. L. & SOC. CHANGE 245,
260 (2000-2001) (discussing trend among courts giving standing to non-legal lesbian mothers raising custody
and visitation claims).
131. See generally, PRINCIPLES, supra note 13 at § 2.00 (describing allocation of custodial and decisionmaking responsibility for children).
132. PRINCIPLES, supra note 13, at §3.03 cmt. e (discussing parent-by-estoppel’s obligation to pay child
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doctrine of estoppel to establish a support obligation, that parent should be
estopped from asserting that the support obligor is not a parent for custodial
purposes.133 Thus, a former partner who is not a de facto parent and would
otherwise be unable to seek custody and visitation rights, would gain standing
to do so if she was obligated to support the child.134
IV. CONCLUSION
When a lesbian couple decides to create a child by way of artificial
insemination, that child is just as entitled to the financial support of both adults
as children of married parents and children conceived through sexual
intercourse. In fact, the decision to have a child between same-sex couples is
often more deliberate than the decision of some couples who conceive through
sexual intercourse. Thus, children born to same-sex couples should be afforded
the same rights as children born to heterosexual couples.
Notwithstanding the lack of a biological connection to the child, a lesbian
partner should not be allowed to walk away from her support obligation simply
because she changes her mind about the decision to become a parent after a
child has already been conceived. A child is born in need of support and the
people who have acted to bring that child into the world should be the ones to
support the child. While courts currently appear apprehensive about imposing
an obligation of support on this nontraditional group of “parents,” case law and
public policy considerations support imposing such an obligation. The use of
artificial reproductive technology among homosexual couples is ever growing,
thereby increasing the need for state legislatures to address the parentage issues
this technology raises. Until then, however, courts should impose an obligation
of child support on a former partner, whose promises or conduct resulted in the
birth of a child.
Caroline P. Blair
support); see also supra note 101 and accompanying text (describing persons considered parents by estoppel
under ALI principles).
133. PRINCIPLES, supra note 13, at 2.03, cmt. b(i) (articulating circumstances in which non-legal parents
owe child support); cf. L.S.K., 813 A.2d at 878 (equitably estopping partner from denying child support after
she asserted action for custody of children).
134. PRINCIPLES, supra note 13, at § 2.03 cmt. b (demonstrating legal rights associated with child support
duties).