Surrogacy in Tennessee
Tennessee has no state statute specifically governing surrogacy. The only
mention of surrogacy is in T.C.A. Section 36-1-102 which is the definitional
section of Tennessee's adoption code. In this section, surrogacy is defined to
include gestational surrogacy and traditional surrogacy. In either case the
statute specifies that no surrender is necessary to terminate the rights of the
woman who carried the child to term and no adoption of the child by the
biological parents is necessary. The statute is careful to state that nothing in
the statute should be construed to expressly authorize surrogate births in
Tennessee "unless otherwise approved by the courts or the general assembly."
With respect to traditional surrogacy, there is some ambiguity in the statute.
In the case of a surrogacy in which the woman becomes pregnant by artificial
insemination, it is unclear how the intended mother's legal relationship to the
child should be established. No surrender of the child is necessary in order to
terminate the parental rights of the surrogate but the legal rights of the
intended parents are only secured if they are the "biological" parents. This
works for gestational surrogacy in which IVF is utilized with the ovum of the
intended mother (and probably even with donated ovum) but not if the child is
the genetic child of the surrogate. Thus, in Tennessee, it seems that surrender
of parental rights and step-parent adoption by the intended mother is the
appropriate route in a traditional surrogacy case.
Surrogacy by gestational carrier is simpler in some ways since the surrogate has
no genetic link to the child. Our statute more easily accommodates termination
of any parental rights she might have and recognition of the legal rights of the
intended mother and father when the intended parents are the genetic parents of
the child or the child is conceived in vitro using donated gametes.
Payment for surrogacy in Tennessee is uncharted water. Again, there is no per se
prohibition on paying a surrogate because there is no statute fully addressing
surrogacy. Tennessee does have a statute which makes it a felony to pay someone
for surrendering parental rights. All states have a statute aimed at prohibiting
baby-selling. In a gestational surrogacy (as described above) no surrender of
parental rights is necessary, thus, payment for the services of a surrogate
would not seem to be prohibited since there would be no payment in exchange for
surrendering parental rights. A traditional surrogacy is more troublesome
because the surrogate - who is also the legal and biological mother - must
surrender her parental rights in order for the intended mother to be legally
recognized as the mother. This seems a great deal more like paying someone to
surrender her parental rights and comes much closer to being the felony
anticipated by T.C.A. Section 36-1-109. Any parties anticipating a traditional
surrogacy for payment should consult an attorney for help in crafting the
arrangement to avoid any appearance of baby-selling.
The final complication in Tennessee is that the paper work for the birth
certificate is generated by hospital personnel. This means the hospital is under
a legal obligation to provide the names of the parents to the state for the
birth certificate to be printed. The intended parents' attorney must educate the
attorney for the hospital and work with the hospital to make sure that the
appropriate names are provided to the state. That may mean that the hospital has
to be named as a party to the legal action that is necessary in any surrogacy
arrangement. Again, retaining an attorney early in the process is crucial to
smooth the potential bumps in the road.
This summary of Tennessee's surrogacy laws has been prepared by
Julia J. Tate, J.D.