In this post, I am returning to April 2, 2020, where a Massachusetts court, in the Adoption of Daphne, vacated a trial court’s order dismissing a petition to adopt a minor child born in Massachusetts to a gestational surrogate.  

The child was the product of in-vitro fertilization.  The genetic father of the child and his partner entered into a gestational carrier agreement with the surrogate in Massachusetts.  The two men selected an egg from a donor, fertilized it with the sperm of the genetic father and implanted it into the surrogate who carried the child to term in Massachusetts.  The child’s birth certificate lists the genetic father and the birth Mother (surrogate) as parents, and the two intended to proceed with a post-birth adoption to terminate the mother’s rights, and establish the genetic father as the sole parent.   In April 2018, the mother signed the “surrender form” under Massachusetts law.  The father, his partner, and the child remained in Massachusetts and filed the father’s post-adoption petition.  It was rejected for lack of jurisdiction.  In June 2018, the three returned to the father’s and partner’s home country.  In July 2018, the father filed a second petition in Massachusetts with a Memo of Law explaining the jurisdictional issue, which was rejected for not using an updated form. In November 2018, the father filed his third petition – using the updated form and including the Memo of Law.  It was also dismissed for lack of jurisdiction.  The father appeals.

The Supreme Judicial Court of Massachusetts addressed the statute in the commonwealth that indicates when its courts have jurisdiction to proceed with an adoption.   The portion of the statute that gave rise to scrutiny was the requirement that if a person that is “not an inhabitant of this commonwealth desires to adopt a child residing here, the petition may be made to the probate court in the county where the child resides…”  The SJC examined the word “reside.”  The court previously defined “reside” as the child’s domicile.  It further stated that “[t]he domicil of the child is “the same as the domicil of their parent who has lawful custody of them.”  For a child born out of wedlock, the child’s domicile would equate to the mother’s.  In this case, the child’s mother was domiciled in Massachusetts. 

The court had to examine three additional questions: whether the mother’s signature on the surrender form impacted the child’s domicile, whether the father’s signature on the post-birth petition form impacted the child’s domicile, or whether the child being removed from Massachusetts impacted the child’s domicile. Of course, domicile does not change until one actually gives up their previous domicile.  The SJC concluded the adoption could proceed.