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GESTATIONAL SURROGACY IN TENNESSEE

Gestational Surrogacy contracts are neither allowed nor disallowed by Tenn. Code Ann. §36-1-102(50). Rather, this unique statute (which is in the definitional section of the adoption code) simply defines surrogacy for purposes of the adoption code.
 
Under case law, the Gestational Carrier will be named as the mother on the birth certificate unless the parents both use their own egg and own sperm. In the case of In re Adoption of Male Child A.F.C., the Supreme Court of Tennessee ruled that if an egg donor is used, the Gestational Carrier must remain on the birth certificate until the second parent completes an adoption proceeding.  The second parent (intended mother or second father) will then replace the Gestational Carrier on the birth certificate. If the intended mother is the genetic mother, she can go directly onto the birth certificate.  If the Intended Father is single, after the initial birth certificate has been issued with the Gestational Carrier listed as “Mother,” he can petition to have the birth certificate changed to specify “None” or “Unknown” in the space for mother.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders? Yes, but 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: No, the Tennessee courts have held that only the biological father can obtain a pre-birth order. The Gestational Carrier will be named on the birth certificate as the mother until the Intended Mother completes a post-birth adoption.
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor: No, the Tennessee courts have held that only the biological father can obtain a pre-birth order. The Gestational Carrier is named on the birth certificate as the legal mother until the Intended Mother completes a post-birth adoption. Tennessee does not allow unmarried people to adopt each other’s children in a quasi-step-parent adoption. If the State in which the unmarried couple resides allows such adoption, they may be able to get Tennessee to honor that foreign adoption decree.
  • Same-sex couple using an egg 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 the couple’s home state or in Tennessee. Tennessee Vital Records will then amend the birth certificate to add the second parent and mark out “Mother,” typing in “Father” above the correction.
  • 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.  After the initial birth certificate has been issued with the Gestational Carrier listed as “Mother,” the genetic father can petition to have the birth certificate changed to specify “None” or “Unknown” in the space for mother.  If the unmarried Intended Parent is the genetic mother, she will be named as the mother and 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

Can both Intended Parents be declared the legal parents in a post-birth order if no parent is genetically related to the child?

  • Married heterosexual couple: The Intended Parents will need to secure an adoption.  Until then, Tennessee will treat the Gestational Carrier and her Husband as the parents, even if the baby came from donated gametes or a donated embryo. 
  • Unmarried heterosexual couple: No, see above.
  • Same-sex couple: No, see above.
  • Single parent: No, see above.

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 or the County in which the Department of Health has its office (Davidson).  Venue may be waived but parties should discuss with Tennessee counsel.

Do results vary by venue? Not generally, although some venues require DNA tests.

Are motions to waive venue accepted? Sometimes

Is a hearing required to obtain a pre-birth order? Yes. In many situations the parties are not required to attend.  If it is a hardship for the parties to attend in person, the Court will generally take testimony by phone.

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 one of the Intended Parents is genetically related to the child.  Venue will be either in Davidson County or in the County where the Gestational Carrier gives birth.

Will Tennessee Vital Records honor a pre-birth order from another state? Yes, but only if it is consistent with Tennessee policy, i.e., an Intended Mother will only be named as the mother if she is also the genetic mother.

What is the typical time frame to obtain a birth certificate after delivery? Vital Records has recently adopted an electronic system. Depending on the circumstances, birth certificates are available within about a week of the birth.  Under exigent circumstances, they can be even quicker.

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. Subsequent to the birth, an unmarried man can get the initial birth certificate amended to remove the Gestational Carrier’s name and to replace her name with “None” or “Unknown.” A couple can get the initial birth certificate amended to replace her name with the name of the non-genetic father only after a step-parent adoption is completed in their home state or in Tennessee.

Can an international same-sex male couple obtain an initial birth certificate naming the biological father only?  No. Initially, only the Gestational Carrier will be named, but Vital Records will amend it to remove the Gestational Carrier’s name, in compliance with a Court Order.

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)?  Yes. In the proceeding for the Order of Parentage, the non-genetic parent is awarded a partial guardianship over the child. The Court that awarded the guardianship can then hear and award the adoption. This is the sole exception in Tennessee adoption laws to the residency requirement. Some parents want to go home and get their adoption done there. Tennessee Vital Records will honor the adoption from a foreign state for a married couple and will prepare a new birth certificate showing both of them as the sole legal parents.

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? Nothing other than the statute, which says that a man who uses donated sperm in order to impregnate his wife is the legal father of the resulting child and the donor has no rights.  This has been held to apply to lesbian couples as well.  Vital Records will issue a birth certificate listing both women as the legal parents, by applying this statute in a gender-neutral fashion.

TRADITIONAL SURROGACY IN TENNESSEE

Traditional Surrogacy, like Gestational Surrogacy, is defined in Tennessee, but is 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 court 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, 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.


State law information provided by the following attorneys practicing Reproductive Law in this state:

Julia Tate Julia@TnBabyLaw.com (615) 310-2831

Other attorneys practicing Reproductive Law in this state:

Lisa L. Collins lcollins@tnadoption.com (615) 269-5540