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July 8, 2015

Expanding Protections for Families: Maine Adopts a State-of-the-Art Law

Maine has adopted a state-of-the-art law clarifying who is a legal parent – whether based on intent to parent, marriage or holding out a child as your own, long term-caretaking and responsibility, or genetics. Both houses of the Maine legislature voted June 30 to override Governor LePage's veto in order to pass LD 1017/SP 358, the “Maine Parentage Act,” into law. It will take effect July 1, 2016.

This far-reaching law prioritizes parental responsibility and stability for youth and children.

We know that family forms are diverse: unmarried women giving birth to over 40% of the children in the U.S. each year and same-sex couples (and individual LGBT persons) are among those using medically assisted reproduction and gestational carrier arrangements to bear and nurture the next generation.

Individual LGBT persons and same-sex couples and our children are among those who will benefit enormously from this state-of-the-art legislation.

Because the law lags behind the realities of family life, GLAD’s docket consistently features heart-rending cases about protecting parent-child relationships in families that lack marital or genetic ties, or victories opening up new pathways to parenthood, such as joint guardianship, de facto parenthood and joint adoption. Contentious “winner takes all” litigation about who is a “parent” can disrupt settled relationships that children count on.

This far-reaching law prioritizes parental responsibility and stability for youth and children.

The Family Law Advisory Commission (FLAC), a legislatively appointed group that recommends updates to Maine’s family laws, tapped GLAD attorney Mary Bonauto, along with attorneys Margaret Lavoie, Brenda Buchanan, Judith Berry, Juliet Holmes-Smith and social worker Frank Brooks to serve on a drafting subcommittee to update Maine’s laws about parentage. Co-chaired by Judge Wayne Douglas and judicial employee Diane Kenty, the drafting committee consulted widely and with two years of effort crafted a bill that was approved by FLAC and submitted to the legislature.

Because the law lags behind the realities of family life, GLAD’s docket consistently features heart-rending cases about protecting parent-child relationships in families that lack marital or genetic ties, or victories opening up new pathways to parenthood, such as joint guardianship, de facto parenthood and joint adoption.

Under the new law, all children are to be accorded the same rights under law without regard to the marital status or gender of the parents or the circumstances of the child’s birth. It explicitly acknowledges that to preserve an existing parent-child relationship, courts may declare that a child has more than two parents.Because of the focus on preserving existing relationships, a person with a genetic relationship to a child may not always displace an existing parent on the basis of genetics alone.

The law also formalizes legal parent-child relationships in single parent as well as coupled non-marital and marital families. It clarifies and confirms existing grounds for parentage – birth, adoption, voluntary acknowledgement of paternity, adjudication of genetic parentage and adjudication of de facto parentage. It recognizes a presumption of parentage for both married and unmarried couples, and as to unmarried couples, requires demonstrated parental responsibility from those who seek parentage based on the “holding out as a parent” concept used in some other states. It also recognizes parentage of children born to parents who use medically assisted reproduction and gestational carrier agreements. 

This is the first statute in Maine addressing parentage by assisted reproduction. As in many other states, the intended parent or parents who use an egg, sperm or embryo donor is/are the parent(s) of the child, and in Maine this is true whether the intended parents are married or not. 

The law requires a formal “consent” to establish legal parentage in this context, and an individual who provides the donated egg, sperm or embryo may be a parent when all parties agree in writing. It also sets forth strict requirements for gestational carriers and gestational carrier agreements. When those standards are followed, legal parentage vests in the intended parents and not in the gestational carrier. The law also allows “traditional” surrogacy in limited contexts.  A judge may declare legal parentage before or after the birth of the child. 

Individual LGBT persons and same-sex couples and our children are among those who will benefit enormously from this state-of-the-art legislation.