Surrogacy Agreements with a Family or Friend Surrogate

When a friend or relative agrees to be your surrogate during your family-building process, they are giving you one of the most amazing gifts. You want to make sure that your Surrogacy Agreement covers all of your intentions fully. Here are some, but not all, of the basics your Agreement should include:

– The preamble of your agreement should include sufficient context, identifying all the parties, explaining the relationships with one another, explaining why the parties are entering into this agreement, and providing any other pertinent context.

– The agreement should identify the surrogate’s spouse, if any, and memorialize the spouse’s consent to the arrangement.

– The agreement should state the number of embryos to be transferred at a time and define the period and number of attempts.

– The agreement should cover the rights of all the parties during pregnancy (such as intended parents attending OB visits) and after birth (such as whether surrogate will have any type of relationship with the child).

– The agreement should name the medical care providers, whose health insurance will be used, and where the child shall be delivered.

– The agreement should discuss ethical issues and decision-making around terminating a pregnancy.

– The agreement should discuss finances, such as who will pay for maternity clothing, potential lost wages to the surrogate, uninsured medical expenses, etc.

As discussed previously on this blog, the law around assisted reproductive technology is evolving, so you should work with an attorney to make sure your Agreement is as enforceable and strong as possible.

SJC: Same-Sex, Never-Married, Non-Biological Parents May Assert Parentage Over Children of the Relationship

Today, the Supreme Judicial Court issued a pioneering opinion about never-married, same-sex families. In Partanen v. Gallagher, two women (“bio mom” and “non-bio mom”) had been together since 2001 although they never married. In 2002, they moved to Florida and bought a home together, and in 2005 they began trying to have a family. Non-bio mom originally tried to conceive through artificial insemination with a sperm donor but was unsuccessful. Ultimately, bio mom tried instead, and conceived two children through artificial insemination with a sperm donor. Non-bio mom was present in the delivery room for the birth of both children, and the parties raised the children together. They moved back to Massachusetts together as a family in 2012.

When the parties separated in 2013, non-bio mom tried to state her claim of parentage over the two children from the relationship whom she helped raise since birth.

The SJC first found that a person may establish herself or himself as a child’s presumptive parent under G. L. c. 209C, §6(a)(4) in the absence of a biological relationship with the child. Then the SJC proffered a two-prong test for stating a claim of parentage: 1) were the children born to both parties? and 2) did the parties receive the children into their home and openly hold out the children as their children?

Here, two key facts sufficiently prove the first prong that the children were born to both parties: the pregnancies were undertaken “with the full acknowledgment, participation, and consent of both parties” and the shared intention for both parties to be parents to the resulting children; and non-bio mom was present in the delivery room when both children were born. As for the second prong, the court finds it sufficient that non-bio mom “participated actively in the care and nurturing of the children form the moment of their birth, that she was involved in key decisions, that [both parties] represented themselves to others—both in form and informal contexts—as the children’s parents, and that the children refer to her as ‘Mommy.’”

Massachusetts continues to lead the way as one of the friendliest states to same-sex families.

What Is a Sperm Donor Agreement?

If you are trying to get pregnant using a known sperm donor, you should obtain a Sperm Donor Agreement, which will memorialize all your intentions so that future fights between you and your sperm donor are preempted.  You and your sperm donor can negotiate any arrangement that works for you. You can get creative and negotiate arrangements tailored exactly to your lives, such as an agreement that the sperm donor will be allowed to attend your child’s high school graduation or an agreement that the sperm donor will receive an annual email update about the child every Christmas.

At a minimum, here are some of the things that your Sperm Donor Agreement will cover:

  • Whether donor’s parental interests, rights, and responsibilities terminate at time of donation
  • What medical and genetic information is disclosed by sperm donor to you and whether sperm donor will take an STD test, at your expense
  • Whether sperm donor will avoid high risk sexual activity during the period of donation
  • Your right to make all medical decision-making related to both the pregnancy and the child
  • Whether you will inform donor if/when you get pregnant, if/when any pregnancies ended in miscarriage/stillbirth/abortion, and if/when a child is born
  • A provision that you will accept any resulting children, notwithstanding congenital or other abnormalities
  • Whether you or the donor is requesting confidentiality, and whether you will share donor’s identity with the child
  • Whether the donor’s sperm may be cryopreserved to be used for your future attempts at pregnancy
  • Whether the donor will inform you of any other future donations or children
  • And much more.

While there are many benefits and reassurances to using a known sperm donor, problems can arise too.  It is best to preempt conflict and fighting by executing a thorough Sperm Donor Agreement with your known donor.




Why Married Lesbian Parents Still Need a Co-Parent Adoption

In Massachusetts, we are lucky to live in the first state to allow same-sex marriage. As a result, some of our practices have caught up with same-sex marriage. For example, when one woman in a married lesbian couple has a biological child, both women’s names are put on the birth certificate. However, the laws are not completely caught up to where they should be. For instance, the statute provides that, when a woman uses a sperm donor with the consent of her husband, her husband is considered the legal parent of the child. That statute is silent as to when lesbian couples use a sperm donor, which they must do in order to get pregnant. The practice of placing both women on the birth certificate exists but the statute does not explicitly support it.

Many family lawyers, as well as the National Center for Lesbian Rights, strongly suggest that all married lesbian couples should have a co-parent adoption for the non-biological mom, even if the non-biological mom is listed on the birth certificate. A co-parent adoption is the legal procedure by which the non-biological mom adopts biological mom’s child without terminating biological mom’s parental rights.

There are a number of conceivable situations where a married lesbian couple could have difficulty if the non-biological mom does not pursue a co-parent adoption:

  • Imagine a large family asset that should pass to non-biological mom and her heirs. Other extended family members might argue that the child should not inherit from this family asset because non-biological mom never adopted the child.
  • Imagine a scenario where non-biological mom is traveling with child and child has a medical emergency. The medical providers might refuse to allow non-biological mom to make urgent medical decisions for the child because she did not adopt the child.
  • Imagine that biological mom and non-biological mom divorce eight years after the child was born. Biological mom argues that non-biological mom should not have the same rights since non-biological mom never adopted the child. In Massachusetts, that argument should not get far, but it could have traction in another jurisdiction that is slow to catch up on same-sex marriage rights.

Accordingly, it is legally advisable and strongly encouraged that non-biological, LGBT parents pursue a co-parent adoption to ensure their parental rights are fully protected in every state.

Where to Pursue Your Restraining Order: District Court vs. Probate Court

In Massachusetts, parties can pursue a restraining order in several courts, and you should consult with an attorney to strategize about court selection.

If you file in district court, it’s possible the process may be efficient, but the district court has limited authority over custody matters. The district court does have the power to order child support, but the district court judges calculate child support far less often than the probate court judges. Furthermore, it can be confusing to have a district court judge adjudicate only part of your divorce—the restraining order and potentially child support—while a probate court judge is adjudicating the rest.

If you file in probate court, it is likely that the Probate Court who handles your restraining order will handle the rest of your matter. Generally speaking, a judge who handles both the restraining order and the divorce will have a fuller understanding of your matter and be able to make more informed rulings. It often makes sense to proceed with your restraining order petition in the probate court.

It is important to consult with an attorney about court selection and make sure you are proceeding with the court that makes the most sense for your case.

General Preparation for Divorce

You should consult with an attorney to strategize the best preparation for your own divorce, since each divorce is different. Here are some of the more general ways to prepare:

  • Get your documents in order. Find the most recent statement (or better yet, all the statements) for each asset you have, your spouse has, and you and your spouse jointly have. One of the biggest expenses in divorce is discovery, when you and your spouse fight for documents. Avoid that expense by having proof of all assets from the beginning of the divorce.
  • Your social media is a gift to opposing counsel, so eliminate your social media presence. You might think your picture from vacation is cute, but opposing counsel will use it to show your lavish lifestyle. You might think nothing of the myriad comments on your posts, but opposing counsel may comb through them to suggest that your extramarital relationship began earlier than you say.  (While adultery is not all that relevant in Massachusetts, you don’t want to lose your credibility before the judge.)
  • Start tracking your expenses. In Massachusetts, the court requires all divorcing parties to file a Financial Statement, which requires you to list all your income, expenses, assets, and liabilities. Begin tracking all of the same, so that you can readily complete the Financial Statement.
  • Keep a journal. If your spouse has slept at home twice in the past fifteen nights, write it down. If your spouse has put your children to sleep once in the past month, write it down. These details could be helpful to your attorney, but you might have a hard time remembering them if you don’t write them down.
  • Communicate respectfully. All of your emails, texts, and notes to your spouse should be respectful. If they’re not, they will likely be used against you. Communicate with your spouse as if you were running a business together.

Deposition Basics


Depositions can be very intimidating to parties. Depositions are an opportunity for opposing counsel to ask you tons of questions and record your every answer in hopes that they will learn new information that will make or break their case. Here are five tips for deposition success.

  • Answer the question, and only the question. If the question is a yes/no question, then your answer should only be “yes” or “no.” If the question is open-ended, answer it as concisely as possible. A colleague likes to use this example—if opposing counsel asks you, “Do you know what time it is?” you should not answer “Yes, 4:45.” Instead, you should only answer, “Yes.”
  • Don’t fill the silence. Opposing counsel may deliberately take a long pause in hopes that you will have the human instinct to fill the silence. Do not fill the silence.
  • “That is all I remember as I sit here.” Opposing counsel is going to try to lock in your testimony. In other words, they may ask you to list every vacation you took during the marriage, and then ask, “Have you now told me every vacation you took during the marriage?” Instead of saying you listed  every single thing, since your memory may not be perfect, answer something like, “That is all I remember as I sit here.”
  • Take a break if you need one. If you are feeling stressed or exhausted, don’t be afraid to ask for a break. Opposing counsel won’t let you take a break before you’ve answered a question, but they should allow you to take a break once the question is answered.
  • “I don’t remember.” Opposing counsel may try to trip you up with complicated factual questions. For example, “In what month, did you roll over your 401k?” If you can’t remember, you can say, “I don’t remember” or “I’m not certain.” It’s better to say that you don’t remember than to state an untrue answer that will be later used to impeach your credibility.

“I” Statements


Research on marital satisfaction finds that couples who use “I” statements are generally happier in their relationships than couples who routinely use “you” statements. (For example, “I need to get out of the house during the weekend to decompress” vs. “You always abandon me with the kids and you take me for granted as a babysitter all weekend.”)

Marriage is not the only time to use “I” statements. Consider using them during your divorce for a smoother and more amicable negotiation. Here are some translations from inflammatory “you” statements into effective “I” statements.

On Custody

“You don’t deserve to have the children all the time. You are undeserving and entitled.”


“I would really like to have time-sharing with the children every weekend because I want to continue to coach Tommy’s baseball practice, take Sally to her Saturday ballet practices, bring the children to church, and bring the children to my family events. My extended family doesn’t do much socially during the week, but we spend a lot of time together on weekends and I want our children to be part of that so they can have strong relationships with their cousins and grandparents.”


On Child Support

“You are useless with money and you are going to waste all the child support on booze and your boyfriend.”


“I feel concerned that there won’t be enough resources for the children after the divorce. I am hopeful that the child support money can be used for the children’s clothes, school supplies, food, and other necessities. How does that sound?”


On Alimony

“You are a philandering #&(@^& and you deserve to pay me every penny you’ve ever seen.”


“After this divorce is final, I will be responsible for my own rent, uninsured medicals, food, transportation, etc. I am going to need to be able to meet these needs with alimony, and I am hoping we can reach an alimony figure that is feasible for you and also allows me to maintain my independence without becoming bankrupt or a ward of the state.”


The Divorce Process

The divorce process can be confusing, and it’s helpful to have a sense of the stages in probate court.  Here’s what you can expect generally.

Opening Pleadings: The Plaintiff’s complaint opens a new matter in probate court.  The Defendant can respond with an answer and counterclaim.  It may also make sense to file a motion for temporary orders or other pertinent motions.

Temporary Hearing: If a motion for temporary orders has been filed, the court will schedule a temporary motion hearing.  This hearing is an opportunity to argue only the temporary issues in the temporary motion, such as a temporary time-sharing arrangement while the divorce is pending.  This hearing is not an opportunity to argue permanent issues like property division.  In fact, some judges don’t even like to hear custody issues on a temporary basis.

Discovery: Once you and your attorney strategize your position and arguments, you will begin collecting and organizing your supporting evidence.  Evidence can be collected through interrogatories, requests for production of documents, subpoenas, and depositions.

Pre-Trial 4-Way: Before the pre-trial conference, the court expects you and your counsel to meet with your spouse and opposing counsel to settle the divorce.  Try your very best to settle at this point!  In the event you are unable to settle, you will need to draft and file a pre-trial memorandum before the pre-trial conference.

Pre-Trial Conference: The court will hold a pre-trial conference at which time the court really wants you to settle.  You will present a nutshell summary of your theory of the case, and the court will give guidance on how the court might rule if the case went to trial.  The goal of this feedback is to help you settle.

Trial: In the unfortunate case you have not yet settled, you will have a trial, which is an opportunity for each party to present evidence in support of his or her arguments.  You should do your absolute best to settle before getting to this stressful and expensive point.

In between these hearings, you may have status conferences, case management hearings, motion hearings, and more as needed.

The Four Types of Alimony in Massachusetts

Types of Alimony

The recent alimony law clarified the distinctions between the four types of alimony, but why does the type of alimony matter? It matters for a few reasons. The type of alimony explains the intent of the alimony, the duration of alimony, and whether or not the alimony is modifiable.

General Term Alimony: General term alimony is based on the duration of the marriage, and is modifiable upon a material change of circumstances. General term alimony can be suspended, reduced or terminated when the recipient spouse has maintained a common household with another person for at least three months. General term alimony generally terminates upon the payor attaining full retirement age.

Rehabilitative Alimony: Rehabilitative alimony generally shall not be more than five years, although it can be extended if unforeseen events prevent the recipient spouse from becoming self-supporting at the end of the term. Rehabilitative alimony can also be modified within the five year rehabilitative period.

Reimbursement Alimony: Unlike the other forms of alimony, reimbursement alimony does not follow the traditional calculation where the alimony amount is one-third of the difference between payor and recipient’s incomes. Once ordered, reimbursement alimony shall not be modified.

Transitional Alimony: Transitional alimony shall not last longer than three years, and transitional alimony shall not be modified, extended, or replaced with another form of alimony.