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.!

This statute is the one under which the parties in In Re Baby Tenn. App. Middle Section, No. M2012-01040-COA-R3-JV (January 22, 2013) proceeded. The parties entered into a traditional surrogacy arrangement and conceived a child.

The parties filed a pre-birth joint petition in Juvenile Court seeking ratification of their surrogacy agreement, recognition of the Intended Father as the parent of the baby and direction regarding issuance of the birth certificate. The Juvenile Court Judge granted that mutually agreed-upon request prior to the child’s birth.

Six days after the child’s birth, the surrogate filed a request for a restraining order which would have prevented the Intended Parents from taking their baby home with them to Italy. The trial court denied that motion. At the same time, the Surrogate also filed a motion to alter or amend the pre-birth order which had ratified the surrogacy agreement. The trial court ultimately denied that motion and the Court of Appeals affirmed that decision. The Tennessee Supreme Court has heard oral arguments in this case but has not yet released an opinion.!

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.!

We now face another factually difficult situation. Neither C.K.G. nor In re Baby address the circumstances of a case currently being taken to the Court of Appeals. As of yet, we have no guidance from the legislature or the appellate courts on the legal parentage of a child conceived with a donated egg and carried by a Gestational Surrogate at the request of Intended Parents.!

Chancellor Robert Corlew of the Rutherford County Chancery Court has rendered an opinion on this issue and that case is now under appeal. The case is factually identical to those which practitioners in this field of law address every day – a married heterosexual couple contracted with another married heterosexual couple to carry their child, after formation of their embryos with the Intended Father’s sperm and eggs from an anonymous donor. The Gestational Carrier carried the child to term and gave birth. The parties obtained a pre-birth Order recognizing that the Intended Mother and the Intended Father are the parents of the child with whom the Gestational Carrier was pregnant and directing that the birth certificate so state. Upon receipt of the Order, the State of Tennessee Department of Health intervened to set it aside and have the birth certificate issued showing the Gestational Carrier as the mother.

The Tennessee Department of Health has expressed the opinion that the gestational surrogate (who satisfies one of the C.K.G. tests – gestation) must be recognized as the child’s legal mother. According to the Department of Health, the Intended Father should obtain an Order of Parentage per T.C.A. § 36-2-311 (either before or after the birth of the child) and the child’s birth certificate can then be prepared showing him as the father and the gestational carrier as the mother. The Department of Health will not issue a birth certificate showing the Intended Mother as the child’s mother until she secures a Decree of Adoption as related parent (as the spouse of the legal parent) under our adoption statute. T.C.A. § 36-101 et seq.!

The parties in the pending appeal (as well as several attorneys who practice in this field) disagree with the Department of Health’s position and see the Intended Mother as the child’s legal mother, pursuant to the limited case law that we have in Tennessee. Through legal orders obtained either pre-birth or immediately after birth, lawyers have sought to have the Intended Mother and the Intended Father recognized as the child’s legal parents and identified as such on the child’s birth certificate, without the necessity of adoption proceedings to secure the legal rights of the Intended Mother and to terminate the parental rights of the gestational carrier. We are all waiting for this case to make its way through the appellate courts.!

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. It is unclear whom the Courts would consider to be a child’s parents if the child came from a donated embryo and was carried by a gestational carrier.!

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.