SJC rules against lesbian mother

A woman who gave consent for her lesbian partner to become pregnant through artificial insemination but left the relationship before the child was born does not have to pay child support, the state's highest court ruled yesterday.

In a 4-to-3 decision criticized by gay and lesbian activists and child welfare advocates, the Supreme Judicial Court said state law does not require a man or woman to support a child born out of wedlock to a former partner through artificial insemination.

The high court agreed with a probate and family court judge that the woman who left the relationship, after planning the pregnancy and signing the line designated "spouse's signature" at the sperm bank, had at least an implied contract with her former partner to have a child. But under current state law, the agreement is unenforceable.

"It may be the case that a child is better off with two persons responsible for providing support than with only one such person, and that it will always be in the child's `best interest' to impose a support order on some second person," said the majority opinion written by Justice Judith A. Cowin. "But that second person may not be imposed on . . . unless the Legislature establishes that he or she is among a class of persons who have a legal obligation to the child."

Writing for the minority, Justice John M. Greaney acknowledged that Massachusetts law does not expressly require child support under such circumstances. But he said the defendant's help in planning the pregnancy and society's interests in the well-being of children compelled the court to order payment.

"The child may have been abandoned by the defendant, but he should not be abandoned by the court," said the dissent.

The case marked the latest foray by the SJC into the fast-evolving field of family law and was decided nine months after the court's historic ruling that same-sex couples have the legal right to marry.

If the couple at the center of the decision had been married, legal specialists said, the outcome would almost certainly have been different. A 1981 state law says that any child born to a married woman through artificial insemination with the consent of her husband is considered the legitimate child of both. But the law does not address what happens when the couple isn't married.

Yesterday's ruling was issued in response to a lawsuit filed by the biological mother, identified in court papers only as T.F., against her former partner, identified as B.L. The couple lived together in the Northampton area for 3 years and broke up around May 2000. T.F. gave birth two months later.

T.F. contended that she and her former partner decided together to have a child and had the discussions of many prospective parents, including who would be godparents, where the child would go to school, and whether they needed a bigger house. The couple paid for the insemination, and B.L. signed on the line designated "spouse's signature," according to court papers.

When the child was born prematurely in July 2000, after the breakup, B.L. immediately went to the hospital in New Hampshire and obtained an identification bracelet given to parents. Soon afterward, she e-mailed friends photographs of the baby and herself with the message: "I hope you all enjoy the pics of my wonderful, beautiful boy."

But evidence presented before a probate judge indicated B.L. only reluctantly agreed to the child.

Wendy Sibbison, the lawyer representing the woman who was sued for child support, said the case essentially dealt with the fundamental right to choose to be part of a particular family.

"If you have sex with somebody and you're not being careful, you know if the child is born, you're the biological parent, and that's going to be your duty," Sibbison said. "But an agreement to be a parent to a child who is not going to be biologically related to you ought to be a decision you can change until that child is born."

If the court had ruled otherwise, she said, it would have created a legal quagmire. If B.L. had to pay child support, Sibbison explained, she could then seek visitation rights and try to make child care decisions, despite having no relationship with the boy, who is now 4 years old.

However, Bennett H. Klein, a lawyer for Gay & Lesbian Advocates & Defenders who represented the biological mother, said the decision conflicted with recent SJC rulings that have expanded the legal notion of parenting.

"What's so disappointing about this decision is that it means that an individual can act purposefully and deliberately to bring a child into the world and then have no obligation to that child," he said.

Justices Francis X. Spina, Martha B. Sosman, and Robert J. Cordy joined in the majority opinion, while Chief Justice Margaret H. Marshall and Roderick L. Ireland joined in the dissent.