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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.


2007 OPTS - The Organization of Parents Through Surrogacy