Tennessee Artificial Insemination Statute At Risk; Lawmakers Play Coy With Motivation

Proposed legislation in Tennessee would only serve to do harm to LGBTQ couples.

gay-lesbian-parents-child-family-lgbt-familiesIf you’ve been following your Facebook feed lately, you probably saw a post about the Tennessee legislator who recently proposed a bill affecting artificial insemination laws in the Volunteer State. Like similar statutes in other states, the proposed bill has triggered a struggle between political factions, religious organizations, and those trying to protect their families.

Representative Terri Lynn Weaver (R-LD-40) has introduced House Bill 1406, which would repeal a 40-year old state statute—T.C.A. § 68-3-306—that deems “a child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, to be the legitimate child of the husband and wife.”

Since the Supreme Court recognized same-sex marriage in Obergefell, statutes like this are often read in a gender-neutral way so that the term “husband” can also mean “wife,” and the term “father” can also mean “mother.” Indeed, Tennessee’s Attorney General issued an opinion stating that this was the required reading for the statute to be considered constitutional after Obergefell.

To date, many same-sex parents of donor-conceived children in Tennessee have been protected by the statute. In particular, the statute protects the female spouse of a woman who delivers a baby after using assisted reproductive technology (ART). (For now, we will set aside the question of how the statute would treat a man who himself delivered a baby because he was born female.)

Justification #1. Is T.C.A. § 68-3-306 Unconstitutional? Representative Weaver has responded to backlash from LGBTQ groups on her Facebook page. (Hey, at least we’re not talking more about government officials using Twitter, right?) Weaver says H.B. 1406 has nothing to do with same-sex marriage:

A couple months ago, the state’s Attorney General filed a brief in a lawsuit related to this statute TCA 68-3-306 in which he said that the law, as written and enacted, was unconstitutional. It is not unusual for the legislature to repeal a law that is unconstitutional.

This appears to be deliberate obfuscation. The Attorney General never said the statute was unconstitutional. As noted above, the Attorney General wrote that the statute could survive if it were interpreted consistently with Obergefell.

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Specifically, the Attorney General wrote:

The legislature’s use of the words ‘husband’ and ‘wife’ merely reflects the fact that only opposite-sex marriages were recognized in Tennessee when the statute was enacted in 1977. After Obergefell, of course, that is no longer the case. In order to preserve the constitutionality of Tenn. Code Ann. 68-3-306, therefore, it must now be construed to read: ‘A child born to a married woman as a result of artificial insemination, with consent of the married woman’s spouse, is deemed to be the legitimate child of the two spouses.’

Justification #2. There is Another Statute Protecting Parents, So We Don’t Need This Statute.

Representative Weaver included in her statement that “thankfully” parents with donor-conceived children in Tennessee can still use another statute to establish parenthood. Although she didn’t specify, Weaver likely referred to T.C.A. § 36-2-304, which provides that a husband is “presumed to be the father of a child” born to his wife during the marriage.

If this statute were to be read without gender specificity, it would, indeed, also be helpful to same-sex couples. But (1) it hasn’t had the same required reading by the Attorney General, and (2) the plot thickens with the simultaneous proposal of another bill.

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No Gender-Neutral Readings of Statutes. Tennessee Republicans are also working to pass a bill to prohibit the gender-neutral reading of statutes. The bill would reverse the gender-neutral reading applied by the State’s Attorney General to the artificial insemination statute. This piece of legislation dictates that statutory words should be given their “natural and ordinary meaning.” The result—if both bills were to pass—would be that the “presumptive parentage” statute could continue to protect heterosexual married couples with donor-conceived children, but leave same-sex couples out in the cold. The female spouse of a woman who conceives via artificial insemination would have no automatic right to parent their child. (Instead, a full-blown adoption proceeding would have to occur).

Put together, the proposed statutes are a “Trojan Horse” that would harm lesbian couples.

Justification #3. Staying Out Of People’s Business On How They Conceive. Some defenders of the bill have argued that they are merely trying to stay out of parents’ personal lives by not inquiring as to how children are conceived. That sounds like a great justification! But the result is the opposite. If the repeal passes and the “presumed fatherhood” statute is not read in a gender-neutral way, the government will be more up in parents’ business, looking to see that whether they are a heterosexual couple and that no “fathers” are really second mothers before honoring a legal parent-child relationship.

A Totally Coincidental, Unrelated Recent TN Case. #Snark. Last year, Weaver was one of 53 lawmakers to try to intervene in the Witt case. That case involved a divorce between a same-sex female couple, and the fight over the parental rights to their donor-conceived child. Weaver, with several fellow Republicans and the Family Action Counsel of Tennessee, argued that the artificial insemination statute (the same one she is now trying to repeal) should not be read to apply to a same-sex couple. Their motion contended that they, as lawmakers, had a “unique and substantial interest in the legislative power and process will be impeded, impaired, and/or nullified” if the law were to be applied to “any persons other than a man and woman joined together as ‘husband’ and ‘wife.’”

Given Weaver’s record—and a lack of another justification that makes sense—it’s hard to believe that the bill is not motivated by anti-LGBTQ sentiment. Of course, if Weaver or others were to come out and say that, then the statute’s discriminatory nature could be confronted directly and would likely be found unconstitutional.

I spoke with Tennessee ART attorney Julia Tate-Keith, who believes that these proposed bills are part of a larger “smoke and mirrors” strategy. She believes that the messages released by these public officials distract and confuse voters, and are part of a larger project to harm LGBTQ-rights on a larger scale. That could include attempts to undermine marriage equality more broadly. Moreover, she is concerned that by denying second parents legal rights to their child, the state is also denying the child a second parent with an obligation of support. As Tate-Keith notes, “The sponsors of these bills do not seem to have taken that into account at all. Or, if they have, then they have decided that acting on their animus toward LGBT outweighs concerns over spending taxpayer dollars. I wonder if their constituents would agree?”

At the very least, we can clearly state that Representative Weaver’s H.B. 1146 would only serve to do harm to LGBTQ couples.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.