GESTATIONAL SURROGACY IN TENNESSEE
Gestational Surrogacy contracts are neither allowed nor disallowed by Tenn. Code Ann. §36-1-102(50). Rather, this unique statute simply defines surrogacy.
There is little published case law about surrogacy in Tennessee, but what little there is shows that the courts approach these cases from what it perceives as the unborn child’s best interest. This approach has resulted in surrogacy law that is out-of-sync with most of the rest of the country, because Tennessee courts have concluded that it is against the child’s interest to have no legal mother. Accordingly, the Gestational Carrier is considered the legal parent unless the parents both use their own egg and own sperm. For case law In re C.K.G., the Supreme Court of Tennessee has ruled that if an egg donor is used, the Gestational Carrier must remain on the birth certificate until the Intended Mother completes an adoption proceeding. The Intended Mother will then replace the Gestational Carrier on the birth certificate.
PRE-BIRTH PARENTAGE ORDERS
Do courts grant pre-birth parentage orders? Yes, in limited circumstances. Courts grant pre-birth orders only if at least one parent is genetically related to the child.
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
- Married heterosexual couple using own egg and own sperm: Yes
- Married heterosexual couple using an egg donor or sperm donor: No, only the biological father can obtain a pre-birth order. The Gestational Carrier will be named on the birth certificate as the legal mother until the the Intended Mother completes a post-birth adoption. The Court ruling that the surrogate must be named as the mother on the initial birth certificate was appealed and affirmed.
- Unmarried heterosexual couple using own egg and own sperm: Yes
- Unmarried heterosexual couple using an egg donor or sperm donor: No, only the biological father can obtain a pre-birth order. The Gestational Carrier will be named on the birth certificate as the legal mother until the the Intended Mother completes a post-birth adoption. The Court ruling that the surrogate must be named as the mother on the initial birth certificate was appealed and affirmed.
- Same-sex couple using an egg donor or sperm donor: No, only the biological father can obtain a pre-birth order. The Gestational Carrier will be named on the birth certificate as the legal mother until the Intended Parent completes a post-birth adoption. The non-biological father can obtain a second parent adoption either in another state or in a few Tennessee counties. Tennessee Vital Records will amend the birth certificate to add the second parent as “Mother,” regardless of the Intended Parent’s gender.
- Single parent using own egg or sperm: Yes. An Intended Father can obtain a pre-birth order, but the Gestational Carrier will be named on the birth certificate as the mother. If the Intended Parent is the mother, the father will be shown as “unknown” on the birth certificate.
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
- Married heterosexual couple: No
- Unmarried heterosexual couple: No
- Same-sex couple: No
- Single parent: No
What are the bases for venue? The county of the child’s birthplace, if both Intended Parents are genetically related to the child. Otherwise, venue is the county of the Gestational Carrier’s residence.
Do results vary by venue? Not generally, although some venues require DNA tests.
Are motions to waive venue accepted? Not generally
Is a hearing required to obtain a pre-birth order? Yes, and all parties must attend: the Intended Parents, the Gestational Carrier, and the Gestational Carrier’s husband, if applicable.
Is a pre-birth order possible in Tennessee based on a Gestational Carrier’s plan to deliver in Tennessee, if no party lives in Tennessee? Yes, if both Intended Parents are genetically related to the child.
Will Tennessee Vital Records honor a pre-birth order from another state? Yes, but only if it is consistent with Tennessee policy, i.e., the Intended Mother is also the genetic mother.
What is the typical time frame to obtain a birth certificate after delivery? At least 3 months
SAME SEX COUPLE
How are same-sex parents named on the final birth certificate? Father and Father; Mother and Mother. The Department of Health marks out the term that mis-genders the parent and types in the correct term. The marked out term and the correct term remain on the birth certificate.
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes.
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes.
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Tennessee (i.e., neither of the Intended Parents lives in Tennessee)? No
If no, will Tennessee Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes
SECOND PARENT & STEPPARENT ADOPTIONS FOR TENNESSEE RESIDENTS
Note: This situation typically arises if the child is born outside of the state. The parents then return to Tennessee to obtain a second parent adoption or stepparent adoption in Tennessee.
Will courts in Tennessee grant stepparent adoptions to heterosexual couples living in Tennessee? Yes.
Does the couple need to be married? Yes
Will courts in Tennessee grant stepparent adoptions to same-sex couples living in Tennessee? Yes.
Does the couple need to be married? Yes
EGG AND SPERM DONATION
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? No
TRADITIONAL SURROGACY IN TENNESSEE
Traditional Surrogacy, like Gestational Surrogacy, in Tennessee is defined, but neither expressly allowed nor disallowed in the Tennessee Code. Recently, the Tennessee Supreme Court issued an opinion in the case of In re: Baby (447 S.W.3d 807), in which the it ruled that the parental rights of traditional surrogates could not be terminated prior to the birth of the child but must, instead, be addressed like the parental rights of any other woman giving birth to her own genetic child. With respect to custody of such a child, of course the Court found that the best interests of the child would prevail. The Court also found that, although the contract language about custody is not binding, courts may consider the terms of a surrogacy contract as a factor in the best interest analysis, particularly when they reflect the parties’ expressed intent as to the best interests of the child at the time they entered into the contract.
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