In a first of its kind decision, the Tennessee Supreme Court has ruled 4-1 in favor of a woman who gave birth to triplets using donated eggs fertilized with the sperm of a man who later claimed she was not the legal mother because she has no genetic link to the children.
The majority opinion filed Wednesday and written by now-retired Chief Justice Frank F. Drowota, III, upheld decisions by the Williamson County Juvenile Court and the state Court of Appeals that “the woman is the children’s legal mother with all the rights and responsibilities of parenthood.” The majority also agreed with the lower courts in awarding joint custody to the parents, with the mother as primary custodian, providing for visitation for the father and ordering him to pay child support.
“Recent developments in reproductive technology have caused a tectonic shift in the realities which underlie our legal conceptions of parenthood,” Drowota wrote. “… We now live in an era where a child may have as many as five different ‘parents.’”
The Supreme Court decision was based, in part, on the triplets’ unmarried parents’ “demonstrated” intent prior to and during the pregnancy that the woman who bore them would be the mother. In addition, the majority concluded that “sound policy and common sense favor recognizing gestation as an important factor for establishing legal maternity.”
Drowota was joined by Chief Justice William M. Barker and Justices E. Riley Anderson and Janice M. Holder. Drowota retired Sept. 2, but was designated a special justice to work on pending cases. He has been succeeded on the court by Justice Cornelia Clark, who was appointed Sept. 19.
In a separate dissenting opinion, Justice Adolpho A. Birch, Jr., said the majority “reached beyond existing law to produce a palatable result.” Birch wrote that the case should have been resolved under current state law, but instead the majority provided “a stop-gap solution usable for this case alone.”
“Unless our legislature acts, I fear that this narrowly tailored solution designed for this specific case will be used as precedent for other cases involving reproductive technolgy,” Birch wrote. “... Tennessee statutes do not use gestation or intent to confer parental status, instead genetics, marriage and adoption are the routes available. This overreaching is not necessary in my opinion.”
Writing for the majority, Drowota said current state laws dealing with parentage do not “contemplate the circumstances of this case, where an unmarried couple has employed techniques for assisted reproduction involving third-party egg donation to produce children for their own benefit and where dispute has arisen over the genetically unrelated gestator’s legal status as mother.”
“In our view, given the far-reaching, profoundly complex, and competing public policy considerations necessarily implicated by the present controversy, crafting a broadly applicable rule for the establishment of maternity where techniques for assisted human reproduction are involved is more appropriately addressed by the Tennessee General Assembly,” the majority said.
The couple, identified in the opinion as “Cindy C.” and “Dr. Charles K.G.” to protect the identities of the children, met in 1993, began dating the following year and later decided to have a child by in vitro fertilization. Two anonymously donated eggs were fertilized with Dr. Charles K.G.’s sperm and one of the eggs divided, resulting in the development of triplets.
An agreement signed by Cindy C. and Dr. Charles K.G. stated that she “will be the mother of any child(ren) born to me as a result of egg donation …” The document was among several they signed at a Nashville fertility clinic.
The babies were born in 2001 while Cindy C. and Dr. Charles K.G. lived together. The mother stayed home for several months before returning to work and the father took a one-year leave of absence following the births.
“For the first several months after the triplets’ birth, Charles and Cindy lived together and shared parenting responsibilities,” Drowota wrote. “They each provided financially for the children’s needs.”
The couple purchased a home in Brentwood, but their relationship deteriorated. In April 2002, she filed a petition in Williamson County juvenile court to establish parentage, obtain custody and child support. The father also sought custody of the triplets and said in his response that she failed to qualify as the legal mother under the state’s domestic relations laws.
The lower court disagreed and the father appealed the decision. The Court of Appeals affirmed the juvenile court judgments and held that there was no directly controlling precedent in Tennessee case law, making it a case of first impression.
“Finding that Cindy was the intended mother and that no other party claimed maternal status, the Court of Appeals held that Cindy is legally the children’s mother,” Drowota wrote.
In reaching its decision, the Court of Appeals cited a California case and adopted its “intent test,” holding that the issue is resolved by looking at the intent of the parties and not just to genetics. The Supreme Court declined to adopt the intent test or a genetic test and vacated that holding by the Court of Appeals, instead basing its decision on “particularly narrow grounds.”