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Surrogacy in Tennessee

Tennessee has remarkably little law addressing surrogacy, especially given that our Supreme Court addressed a case involving assisted reproductive technology (ART) more than twenty years ago. Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992) (constitutional issues raised by disposition of frozen embryos in divorce case.)!

Tennessee has one statute on surrogacy, Tennessee Code Annotated, §36-1-102(48)(A). This statute is in the definitional section of our adoption code. It says:!

(48) (A) “Surrogate birth” means:

(i) The union of the wife’s egg and the husband’s sperm, which are then placed in another woman, who carries the fetus to term and who, pursuant to a contract, then relinquishes all parental rights to the child to the biological parents pursuant to the terms of the contract; or!

(ii) The insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father’s wife to parent;!

(B) No surrender pursuant to this part is necessary to terminate any parental rights of the woman who carried the child to term under the circumstances described in this subdivision (48) and no adoption of the child by the biological parent(s) is necessary;!

(C) Nothing in this subdivision (48) shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly.!

This statute does not authorize or permit such surrogacy arrangements, nor does it make them illegal. It merely describes how surrogacy does or does not fit in the structure of adoption.!

The Tennessee Supreme Court did address traditional surrogacy in the case of In Re Baby Tenn. App. Middle Section, No. M2012-01040-COA-R3-JV (January 22, 2013) proceeded.

In that case, the parties entered into a traditional surrogacy arrangement and conceived a child.Before the birth the parties got a Court Order affirming the Intended Father (who was the genetic father) as the legal father and granting him custody.

Six days after the child’s birth, the surrogate returned to Court.  The Tennessee Supreme Court opinion is the ultimate result of that decision.  The Supreme Court found that a traditional surrogate’s parental rights could not be terminated prior to the birth.  She is to be treated like any other mother and her parental rights are not to be terminated if there are insufficient reasons for the termination of her rights.

Tennessee has no statute addressing how to handle gestational surrogacy (surrogacy in which the Intended Parents use their own egg or a donated egg) so we are proceeding under the limited case law we have. We have had one case, In Re C.K.G., 173 S.W. 3d. 714 (Tenn. 2005), which is of limited precedential value according to the opinion’s author, in which our Supreme Court addressed the rights of a couple who had their babies with anonymously donated eggs and later separated. The man alleged that the woman who carried the babies and who was, at the time, raising them was only a gestational surrogate since she had no genetic relationship to them. The Court had to then determine whether the woman was the legal mother of the children. The Court rejected reliance solely on an “intent” test which has been used in other States, but set forth a three prong test in which maternity is to be determined by looking at three factors, (1) intention of the parties, (2) genetic relationship of the child and the parties, and (3) gestation of the child. In the C.K.G., case, since the woman whom both parties had intended to be the mother also gave birth to them, the Court declared her to be their mother, despite her lack of a genetic tie to them!

C.K.G., and In re Baby both come from difficult factual circumstances. Finding otherwise than the Courts did would have disrupted the families of four blameless children. The impetus to find a solution which preserved their homes must have been great. Despite the adage that “hard cases make bad law,” in these opinions, the general law arising from the opinions addressing these difficult circumstances seems to be fairly good law. Both opinions present clear and cogent analyses of the facts and existing law, setting forth precedence which practitioners follow in future cases, without going beyond the facts presented and the arguments made!

The Tennessee appellate Courts have addressed gestational surrogacy with donated eggs in the cases In re: Adoption of a Male Child, A.F.C., 491 SW3d 316 (Tenn. Ct. App. 2014) (perm. app. denied), and In re: Amadi A., 2015 Tenn. App. LEXIS 251, 2015 WL 1956247, No. W2014-01281-COA-R3-JV (Tenn. Ct. App. 2015) (no perm. app. filed).  In these cases the Gestational Carriers carried babies who were conceived with eggs which were donated to the Intended Parents.  In vitro fertilization of those eggs with sperm produced by the Intended Father formed the embryos.  In these cases, the Intended Mothers have been through incredible losses trying to conceive and carry their own babies with their own eggs.  Yet Tennessee’s appellate Courts have found that these Intended Mothers are not the legal parents of the children.  The Courts have found that the Gestational Carriers have to be identified as the mothers on these babies’ birth certificates.  The Courts have declined to find that the surrogates have legal rights as the mothers of the babies but, since they carried the babies and the genetic mother is not available to be recognized as the mother, the surrogates have to be listed as the mothers on the birth certificates.

The bottom line is that the Intended Father (the genetic father) is listed on the initial birth certificate along with the Gestational Carrier when the baby is conceived with a donated egg.  The Intended Mother or the other Intended Father will establish his or her legal relationship with the baby through a related-parent adoption.

Tennessee does have a restriction on adoption such that only Tennessee residents can adopt in Tennessee.  Recently the Tennessee legislature passed an exception to this requirement.  If a Tennessee Court has granted a non-Tennessean guardianship over a child, that Tennessee Court has jurisdiction to address the adoption of the child.  While this was not the original purpose of this statute, non-genetic parents who need to secure their legal relationship with their children may be able to do so in Tennessee if a Tennessee Court grants the parent a partial guardianship over the child.

Tennessee does have an embryo donation statute which, in essence says that, when a couple receives a donated embryo, the recipient couple become the legal parents of any children who are born to them from the embryos. This statute makes no reference to surrogacy. Without surrogacy being covered in the statute on embryo donation, parents using donated embryos are stuck with the requirements of Tennessee’s laws on surrogacy.  If neither of the Intended Parents is a genetic parent of the child, the parents can not easily get their legal relationship with their children recognized.

Tennessee’s Courts and Legislature continue to develop our State’s law on surrogacy. Please contact us to discuss how our laws may apply to your situation.