This appeal arises from the denial of the plaintiff’s Tenn. R. Civ. P. 60.02 motion requesting relief from an agreed-upon permanent parenting plan that was approved by the court and incorporated into the final divorce decree. The plaintiff contended that the defendant spouse lacked standing to seek custody and visitation of the minor children, who were conceived by in vitro fertilization;[1] therefore, the permanent parenting plan was void for lack of subject matter jurisdiction, i.e., standing was jurisdictional. The material facts are that the couple entered into a contract with a reproductive clinic in October 2013 to perform an in vitro fertilization procedure, with each party signing the contract as “Prospective Parent.” The reproductive clinic impregnated the plaintiff with embryos created from the plaintiff’s eggs and donated sperm. As a result of the procedure, the plaintiff gave birth to twins in July 2014. The parties, a same-sex couple, married in June 2015, shortly following the United States Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015). In August 2017, the plaintiff filed for divorce, contending there were no children born of the marriage, and the defendant filed an answer and a counter-complaint alleging there were two children born of the marriage and requesting that the court designate her as the primary residential parent. After the parties resolved all issues, the trial court entered a final divorce decree, incorporating an agreed-upon permanent parenting plan that (1) stated the children were a product of the parties’ marriage, (2) designated the plaintiff as the primary residential parent with 240 days of parenting time per year and designated the defendant as the alternate residential parent with 125 days of parenting time, (3) provided for joint decision-making authority, and (4) ordered the defendant to pay child support. Three months after the divorce decree became a final judgment, the plaintiff filed the Rule 60.02 motion at issue in this appeal. Following briefing and a hearing, the trial court determined that the defendant was able to establish parentage under Tenn. Code Ann. § 36-2-403 because she met the requirements of the statute, in that she was a party to the written contract consenting to the in vitro fertilization procedure, and she accepted full legal rights and responsibilities for the embryos and any children that resulted. The trial court also determined that the defendant was entitled to the presumption that she was the children’s parent in accordance with § 36-2-304(a)(4) because the defendant held the children out as her natural children. For these and other reasons, the trial court denied the plaintiff’s Rule 60.02 motion for relief. This appeal followed. Because the custody and visitation statutes specifically provide that only a parent has standing to seek custody and visitation in a divorce action, “the issue of standing is interwoven with that of subject matter jurisdiction and becomes a jurisdictional prerequisite.”Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004). Therefore, the defendant must fit the statutory definition of “parent” for the court to have jurisdiction to grant visitation. Tennessee Code Annotated § 36-2-403 provides the single means of establishing the parentage of children born as a result of the in vitro fertilization procedure. See Tenn. Code Ann. § 36-2-401. Contrary to the plaintiff’s contention that all of the gametes (both the sperm and the egg) must be donated for § 36-2-403 to apply, we read the statute as addressing situations such as this one, where only half of the gametes are donated, as well as situations where all of the gametes are donated. Because the defendant contractually agreed to accept full legal rights and responsibilities for the embryos and any children produced as a result, the defendant is presumed to be the children’s parent under § 36-2-403(d); therefore, the defendant had standing to seek custody and visitation in the underlying divorce action. Accordingly, the trial court had subject matter jurisdiction over the controversy. For these reasons, we affirm the trial court’s decision to deny the plaintiff’s Rule 60.02 motion for relief from the judgment.
[1] Merriam-Webster’s Dictionary defines “in vitro fertilization” as “fertilization by mixing sperm with eggs surgically removed from an ovary followed by uterine implantation of one or more of the resulting fertilized eggs.” “In vitro fertilization.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/in%20vitro%20fertilization (last visited May 28, 2021). The applicable statutes—Tenn. Code Ann. §§ 36-2-401 to -403—primarily use the term “embryo transfer,” which is defined as “the medical procedure of physically placing an embryo in the uterus of a female recipient intended parent.” Tenn. Code Ann. § 36-2-402(4). The terms “in vitro fertilization” and “embryo transfer” are used interchangeably throughout this opinion. |