Maine Redefines How You Become a Parent (Legally)

The Maine Legislature has created a new law, becoming effective in July 2016, that redefines how a person becomes a parent, legally speaking. The new law is a drastic departure from existing Maine law and it creates several “new” ways that a person could become a legal parent of a child.

There are many ways to become a parent, including the following, some of which are described below:

  • Birth
  • Adoption (under Title 18-A)
  • Voluntary Acknowledgment of Paternity
  • *Presumption (based on marriage or “holding out”)
  • *De facto parentage
  • *Genetic parentage, which does not occur through birth (but rather, through reproductive technology)
  • *Consent of intended parents and assisted reproductive “donor” or gestational carrier.

There are four principal ways that the law makes substantial changes to the existing law to create a new manner in which a person becomes a parent, beyond being the biological parent of a child.

  • First, consistent with the new laws relating to gay marriage and expanses in reproductive technology, the new law catches Maine law up with some of the more recent advances in reproductive technology. Specifically, there are two types contemplated by this law: Assisted Reproductive Technology and Gestational Carrier Agreements.  When someone is a gestational carrier (which is someone who carries a child without providing genetic material—implanted egg—as opposed to a traditional surrogate, who uses her own egg), they are no longer considered the intended, or legal parent.  The law provides detailed rules for surrogacy or gestational carrier agreements, including that surrogates cannot be younger than 21, they must have given birth at least once, and there are procedures for transferring an agreement from one state to another.  Specifically, the law provides for a “Birth Order” which is needed if a baby is taken out of one state and brought to Maine (or taken from Maine to another state), providing the opportunity for the parties to obtain a final judgment on parental rights and responsibilities, which is given full faith and credit in the other state.  In sum, the new law protects the intended parents by providing an assurance that a surrogate or a donor does not become the legal parent, if certain procedures are followed, after the birth.
  • Second, a person can become a “de facto” parent if he or she has played a “permanent, unequivocal, committed and responsible parental role in the child’s life.” In other words, even if the child has a biological mother and a biological father, if there is a third person who has played a “parental” role in the child’s life, that person may be a parent as well. This creates the unique possibility in Maine for a child to have three (3) legal parents.
  • Third, a person can become a parent for a very young child if he or she “holds themselves out” as the child’s parent. This occurs in the first two years of the child’s life, and if, during that time, a person who is not the child’s biological parent holds themselves out as the child’s natural parent. For example, a mother becomes impregnated by one person—the biological father—and then the father is absent, but at the time of the birth the mother has a new partner. If that new partner acts as the child’s parent for the first two years of the child’s life, then that person displaces the biological father and is the child’s legal parent for life.
  • Finally, with biological parents, the new law now provides a presumption that unmarried partners are the child’s parents if they are living together. While the previous law presumed that the mother’s spouse was the child’s father only if the parents were married, the new law reflects the growing reality that Maine parents are not always married. Now the child is presumed to be the biological child of the mother’s cohabiting partner at the time of the birth.

While this law contains many nuanced and detailed terms that are too numerous to recount here, this description provides an overview of many of the principal changes in the law. It is just the tip of the iceberg when it comes to the complexities of the Maine Parentage Act.

If you are interested in exploring any of these issues, including assisted reproductive agreements, adoptions, or you have a question about whether you are a legal “parent” under Maine Law, we encourage you to contact Brian Champion.