Woman Not Ordered to Pay Support After Oral Contract to Become Parent  

The Supreme Judicial Court recently ruled that a woman was not obligated to pay child support to her former partner for a child conceived through artificial insemination because an oral contract the two reached to have the child could not be considered enforceable by the court.

The plaintiff, T.F., and the defendant, B.I., are two women who lived together from 1996 to 2000. The plaintiff became pregnant through artificial insemination and gave birth to a child in July 2000, after the couple had separated. In January 2001, the plaintiff filed a complaint in the Probate & Family Court and requested that the defendant pay child support under the child support guidelines.

While the Probate judge found that there was an agreement to create a child, which had been breached by the defendant, the judge did not issue a support order. She referred the case to the Appeals Court, and the case was removed to the Supreme Judicial Court on the plaintiff’s application for direct appellate review.

According to the decision, prior to the deterioration of the relationship between the two women, the defendant expressed regret about being a “separated parent,” talked of adopting the child, and promised financial support for the child.

After the birth of the child, the defendant visited the mother and child several times in the hospital, helped with the selection of the child’s name, and promised to provide support and change her work hours to help raise the child. In fall 2000, the couples argued over support for the child, who required additional medical care because of his premature birth. The defendant later acknowledged that she was not paying support because she was angry with the plaintiff, according to the decision. In October 2000, the defendant wrote the plaintiff, declaring that she no longer wanted contact with the plaintiff or the child.

The Probate court judge found that there was no written agreement between the parties regarding having a child together, that the defendant is not biologically related to the child, and that she has never lived with him. The judge found further that the defendant's name does not appear on the birth certificate, that she did not adopt the child, and that she has made no financial contributions for the benefit of the child, except for one payment of $800 to the plaintiff shortly after the baby was born.

In their analysis of the case, the Supreme Judicial Court found that “the decision to become, or not to become, a parent is a personal right of ‘such delicate and intimate character that direct enforcement . . . by any process of the court should never be attempted.’” “‘Parenthood by contract’ is not the law in Massachusetts, and, to the extent the plaintiff and the defendant entered into an agreement, express or implied, to co-parent a child, that agreement is unenforceable,” the decision stated.

Furthermore, the court stated that “because the defendant is not a parent under any of the statutory provisions enacted to establish parenthood, she has no duty to support the child financially, and she may not be ordered to pay child support.”

In a dissenting opinion by three of the justices, the court stated that the Probate judge determined that the decision to create this child was “even more conscious and deliberate than the decision that is made by some couples who are both biological parents and conceive a child by direct sexual intercourse. That was the agreement: to create a child.” The justices wrote that while the promises made from one woman to the other about parenthood may be unenforceable in court, the support due to that child should be enforceable. “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,” the dissenting judges concurred.

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