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Mario Gagliardi, a farmer and property manager from New Ashford, was over 40 when he met his wife, Emilee. Mario always felt that if he were to have a child, it would be through adoption, to give a child in need a loving home. Emilee, a scientist, agreed.
In 2021, they adopted their first son as a newborn from Texas. In 2023, they used the same process to adopt their second son, Acer, from a family in Iowa. The Gagliardis family gathered for a celebration on the day the adoption was to be finalized.
Abruptly, the court The hearing scheduled for that day to conclude the trial was canceled, Mario Gagliardi and his lawyer told the editors.
The Gagliardis were one of the first families — there have been more since, according to adoption agencies and advocates — to be stymied by a new legal interpretation of Massachusetts adoption law that makes an already emotionally draining process needlessly more difficult.
For more than four decades, attorneys say, judges have interpreted state law as a way to allow Massachusetts’ process for child surrender to apply to families living out of state.
However, in the past year, a new interpretation emerged from some judges in Western Massachusetts, which prohibits the Massachusetts form from being used by out-of-state birth parents unless it is signed in Massachusetts.
The interpretation causes great damage to what was previously an established part of adoption law. While cases could potentially reach the Supreme Court, the simplest solution would be for the Legislature to clarify the law and return the process to how it has been done for decades.
“Not only is this terribly stressful for the (adoptive) family, the way it leaves them in the dark and costs a lot of money, it is also traumatic for the birth parents,” said Amy Cohen, executive director of the Newton-based adoption agency . Adoption with love.
At issue is the state law which says that the surrender of a child outside Massachusetts is valid “if taken in accordance with the laws of the state or country where he or she was executed.”
Until recently, as long as the laws of another state did not require the use of that state’s surrender process, birth parents were given the option to use the Massachusetts process. Massachusetts requires birth parents to sign a form in the presence of a notary and two witnesses at least four days after a child’s birth. There is then a six-month waiting period before a court finalizes an adoption, during which time an adoption agency is the legal guardian of the child. Unlike some other states, Massachusetts does not require birth parents to attend a hearing, which can make the process in Massachusetts easier and faster. (Under federal law, officials in both states must also confirm that the adoption was carried out legally.)
In the past year, however, some judges began interpreting the statute as requiring birth parents to either use their home state’s surrender process or travel to Massachusetts.
Attorney Amy Cook of Dedham, who represents adoption agencies, wrote in testimony to the Legislature that the change “was adopted by a few judges without any warning, explanation or consistency among the many judges of the Probate and Family Courts.” Cook told the editors that she is “waiting for the hammer to fall in the eastern part of the state” and can no longer confidently advise families that their paperwork will be processed.
A court spokesperson declined to comment, calling it a legal question. If a party believes a judge has misinterpreted the law, they can appeal.
The Gagliardis wrote to the Legislature that they chose not to appeal because they did not want to jeopardize the adoption of their eldest son or delay Acer’s adoption through litigation. Acer’s birth mother was pregnant with her fourth child – and caring for two at home – and unable to travel. So the Gagliardis spent $5,000, hired an attorney in Iowa and convinced the birth parents to drop their paperwork and attend a court hearing in Iowa to comply with Iowa law. For four months they feared the adoption would fail.
“We were completely in the dark,” Mario Gagliardi said. ‘He had been living with us for six months, we had become attached to him. It was a very emotional time.”
Gagliardis’ attorney, Renee Wetstein, said the family was fortunate that the biological parents were available and willing to withdraw the papers. Sometimes a biological parent signs a surrender paper and cannot be found or does not want to go to court.
The legal shift is already impacting families’ choices. Cohen said if she has a birth mother who lives out of state and wants to use Massachusetts’ surrender process, she won’t match them with a family in Western Massachusetts. (The agency has continued to complete adoptions in Eastern Massachusetts with judges accepting the Massachusetts form.)
The U.S. government’s rightward shift also increases the urgency of solving this problem. Historically, birth parents who gave their child to a same-sex couple in Massachusetts could use the Massachusetts form to circumvent restrictions on same-sex adoption by the birth parents. is at home. The Supreme Court’s 2015 ruling in Obergefell v. Hodges established a constitutional right to same-sex marriage and adoption. However, as a future Supreme Court overturns Obergefell decision, right to same-sex adoption could once again depend on state laws.
Legislation sponsored by State Rep. Lindsay Sabadosa of Northampton would insert language into the bill clarifying that an out-of-state surrender is valid if it is made in accordance with the laws of that state or of Massachusetts. But the bill was introduced late in the legislative session and has not advanced.
It’s a minor legal change to codify a long-standing practice. But for some families, their ability to adopt a child depends on those words.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.