GESTATIONAL SURROGACY LAW TENNESSEE
Tenn. Code Ann. 36-1-102(48) neither permits nor prohibits surrogacy, but merely defines it. Pursuing, pursuing surrogacy in Tennessee can be a complex process.
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.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Tennessee, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Tennessee.
Is Gestational Surrogacy Legal in Tennessee?
Yes. Gestational surrogacy is permitted in Tennessee because no statute or published case law prohibits it. However, as mentioned above, pursuing surrogacy in this state can be a complex process. A pre-birth order is only possible when at least one of the intended parents shares a genetic connection with the child. Only the genetically related intended parent will be named on the parentage order; the non-genetic intended parent will be required to complete a second-parent or stepparent adoption after the child is born.
Is Traditional Surrogacy Legal in Tennessee?
Yes. Similar to gestational surrogacy, traditional surrogacy is considered legal because no statute or published case law prohibits it. However, the rights of a traditional surrogate cannot be terminated until after she gives birth, due to her genetic relationship with the baby. A traditional surrogate cannot be compelled to surrender her parental rights and any aspect in a surrogacy contract that does so is unenforceable, as determined in the case In Re Baby.
Is Compensated Surrogacy Legal in Tennessee?
Yes. Compensated surrogacy is legal because no statute or case law prohibits it. This is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Tennessee Surrogacy Contract
There are no state regulations that address the process of creating a surrogacy agreement in Tennessee. However, intended parents and their surrogate must be represented by separate surrogate attorneys to ensure that both parties’ rights and interests are protected.
These attorneys will negotiate an agreement that addresses at least the following:
- The rights and responsibilities of each party
- Any potential risks and liabilities, and the steps to take should they occur
- Surrogate compensation and other financial information,like surrogacy insurance
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations
- And more
Once the contract is signed by parties and executed, the medical process of surrogacy can begin.
Determining Legal Parentage in Tennessee
A pre-birth order is only possible when intended parents are completing a gestational surrogacy and when at least one of the intended parents shares a genetic connection with the child. Only the genetically related parent will be named on the parentage order. The non-genetic parent will be required to complete a second-parent or stepparent adoption after the child is born.
If a traditional surrogacy is pursued, a pre-birth order cannot be obtained because the court also held that the parental rights of a traditional surrogate shall not be terminated prior to the child’s birth but must instead be treated like, and determined pursuant to, an adoption.
Same-Sex Surrogacy in Tennessee
Q: Is Same-Sex Surrogacy Legal in Tennessee?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Tennessee?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Tennessee?
A: Since Tennessee does not have a statutory rule on this, there is not a specific set of guidelines for when a Tennessee judge may uphold the validity of a surrogacy arrangement. However, since a surrogacy contract is like any other legal contract, it is presumed that the contract would be enforceable but it is important to consult with an attorney to assure that this is the case in your unique situation.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in Tennessee?
A: No. International intended parents are subject to the same surrogacy process as domestic intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: A post-birth adoption will be necessary when only one or neither parent is genetically related to the child. However, only married intended parents can file for adoption in Tennessee because the state only allows for stepparent adoptions and does not permit second-parent adoptions.
Q: Does Tennessee Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: No. Second-parent adoptions are not permitted in Tennessee; unmarried intended parents will be required to pursue a second-parent adoption outside the state in order to secure his or her legal parental rights.
Stepparent adoptions are permitted and are available to married couples.
Q: If Intended Parents Cannot Complete a Second Parent Adoption, How Can Unmarried Non-biological Intended Parents Protect their Parental Rights?
A: The only way unmarried non-biological intended parents can protect their parental rights is through marriage, if they have a child via surrogacy in Tennessee. Otherwise, parental rights to the child remain with the other biological parent (not the intended parent’s spouse).
Q: What Happens in Cases Where Intended Parents use a Donor Egg, Sperm or Embryo?
A: If neither parent nor a single individual has a genetic connection to the child born via surrogacy, it may be viewed as an adoption in the eyes of the law, which comes with additional legal restrictions and regulations. One of the parents of the child born to a gestational carrier must be the genetic parent of the child to protect the intended parents’ rights.
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