As families pioneer various high tech reproductive alternatives they need adventurous attorneys to pioneer the associated legal procedures. In Tennessee, there are few ground rules and no well established legal methodologies in this area. Even defining who the child’s legal and biological parents are can get complicated.
Various other issues are:
- How to make the intended parents the only legal parents.
- How to properly terminate the rights of non-intended parents, if necessary.
- How to get the intended parents names on the birth certificate.
- What if a surrogate changes her mind?
- Special circumstances regarding egg/sperm donation.
- Importance of a contract.
- Inheritance matters.
- Insurance.
- What expenses can be paid.
Assisted Reproductive Technology law in Tennessee has always been a hodge podge of law not designed for the purpose. In 2004 the law was clarified by a new case, In re C.K.G.
The court in C.K.G. described the two legal approaches to assisted reproductive technology as “adoption default” and “intent test”. The adoption default approach requires all intended but not genetic parties to adopt the child to establish a legal parent child relationship, while the intent based approach recognizes a parental relationship if the parties clearly intended to create one.
C.K.G. follows New York and California in adopting the intent based approach. The court in C.K.G. notes that Davis v. Davis, decided by the Tennessee Supreme Court prior to either the New York or California case, and the only other assisted reproductive technology case in Tennessee, gives great deference to the intentions of the parties.
The court in C.K.G. however was clear to limit its holding to the facts of the case, a married intended mother who was also gestational carrier of children created using her husband’s sperm and donor eggs. It also expressly limited its applicability to contests between the intended parents and not between intended parents and donors. So in most assisted reproductive cases the attorney must still create a process they believe will achieve the clients’ goals. There is no certainty. However, C.K.G. can reasonably be cited for the proposition that, within reason, the Tennessee courts will endeavor to support the clearly expressed intentions of the parties.
Even with C.K.G., the law in this area is far from settled.
The lawyer’s role in Assisted reproduction technology is to write a strong contract and to make the intended parents the legal parents.
Money is the sleeper issue in Tennessee reproductive technology law, as it is nationally.
If there is an adoption anticipated, as is recommended in a true surrogacy, no surrogate can receive compensation in excess of that allowed for birth mothers under T.C.A. § 36-1-109, the statute that prohibits the sale of children and sets out allowable expense reimbursement. Violation of T.C.A. § 36-1-109(a)(2) subjects one to criminal penalties. Therefore, surrogacy for compensation in cases requiring adoption is illegal in Tennessee.
C.K.G., by rejecting the “adoption intent” approach places some assisted reproduction situation beyond the scope of the adoption statute and thus beyond the scope of the baby selling statute.
Surrogacy for a fee is not commonly done in Tennessee. Tennessee courts and the legislature are generally conservative. Many people do not want to risk the surrogate changing her mind and having their primary protection being a contract that could be found void as against public policy or illegal due to a large payment to the surrogate.
Paying donors whose rights will later be terminated in an adoption could also present problems though it is likely that the donor in C.K.G. was paid and the court made not mention of it. In practice anonymous sperm and egg donors are almost always paid.
Payments between surrogates and intended parents should never be made without consulting an attorney.