An introduction to the laws of Assisted Reproductive Technology (ART) in the State of Tennessee

Generally, is Tennessee friendly to ART?  Yes.  Tennessee’s attorneys and Courts can accommodate almost any sort of ART arrangement.  The only arrangement that practitioners agree is not workable in Tennessee is a genetic surrogacy (formerly known as a traditional surrogacy) in which the Surrogate's egg is used is not surrogacy in Tennessee.   The parentage of a child born through genetic surrogacy in Tennessee will be established through the adoption process and all the restrictions pertaining to adoption will apply. 

Is Tennessee friendly to non-married couples?  For parents who are using their own genetics, Tennessee is a friendly State.  If an unmarried man and woman produce embryos with their own gametes and have a surrogate carry the baby, our Courts will grant the man and the woman an Order of Parentage and they will be treated like any other parents. 

If a couple is using donated eggs, Tennessee is less friendly.  Regardless of the gender of the Intended Parents, a non-genetic intended parent, must secure her or his legal parent-child relationship through adoption after the birth.  Tennessee law has no mechanism for the unmarried partner of a genetic parent to adopt the child, while preserving the genetic parent’s rights. 

Is Tennessee friendly to LGBT families?  Tennessee is clearly not a friendly place for LGBTQI+ folks to live but it is a surprisingly friendly State for LGBTQI+ people engaging in ART. Our ART laws do not treat people differently based on sexual orientation or gender identity.  If you are a genetic parent, you can have your parentage recognized in a pre-birth Order.  If you are not a genetic parent, you have to secure your legal parent-child relationship through adoption, after birth, and only if you are married to the genetic parent.

Clients report that our fertility doctors and hospitals are consistently gracious regarding sexual orientation or gender identity.  The one exception to this is the National Embryo Donation Center (NEDC) where many people go to find embryos with which to complete their families.  NEDC refuses to work with same-sex couples.   

Is Tennessee friendly to a single intended parent?  Yes.  Zealous advocacy with the Tennessee Department of Health by several family law and ART lawyers has resulted in a change in policy.  While the Surrogate will appear as the mother on the initial birth certificate, the Department of Health no longer interprets our statutes to require that the Surrogate remain listed on the birth certificate when the Intended Parent is a single father.  A new Birth certificate will be prepared.  Now, the unmarried father will ultimately receive a birth certificate which lists the Mother as “not reported.” 

Are there Tennesse statutes in place for surrogacy?    Tennessee’s sole statute on Surrogacy is in the definitional section of our adoption code.  It clarifies that no surrender is required to terminate any parental rights of a woman who carries a baby as a surrogate as that is defined in the statute.  T.C.A. Section 36-1-102(51) provides:  

1. (A) “Surrogate birth” means:

(i) The union of the wife's egg and the husband's sperm, which are then placed in another woman, who carries the fetus to term and who, pursuant to a contract, then relinquishes all parental rights to the child to the biological parents pursuant to the terms of the contract; or 

(ii) The insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father's wife to parent; 

(B) No surrender pursuant to this part is necessary to terminate any parental rights of the woman who carried the child to term under the circumstances described in this subdivision (51) and no adoption of the child by the biological parent or parents is necessary; 

(C) Nothing in this subdivision (51) shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly. 

Does Tennessee have an embryo donation statute?  Tennessee does have a statue on embryo donation. T.C.A. Section 36-12-401 – 403 provides a single method for establishing the parentage of children born through embryo donation and establishes that no adoption is necessary in order for the recipients to be recognized as the parents.  

This statute doesn’t anticipate the donated embryo being carried by a surrogate.  In accordance with the terms of the statute, “embryo transfer” is the placement of an embryo into the uterus of a female recipient intended parent and a child “born to a recipient intended parent” is presumed to be the legal child of that recipient intended parent. 

As the embryo donation statute only provides for a recipient intended mother carrying the child conceived by embryo donation, we do not recommend that Intended Parents who are working with donated embryos opt to have a surrogate in Tennessee carry for them.  When a child is born to a surrogate through a donated embryo, the parentage of the child must be established by adoption and all the restrictions pertaining to adoption will apply (including the limitations on payment to a birth mother).  

Does Tennessee have an egg donation statute?  Tennessee does not have a statute which pertains to egg donation.  Our Vital Records Act states that a man who utilizes donated sperm to achieve a pregnancy with his wife is presumed to be the legal father of the child but it does not refer to egg donation. 

Is gestational surrogacy (third party gamete use) permitted in Tennessee?  Surrogacy with an embryo created with donated sperm or donated eggs (but not both) is permitted in Tennessee.  It is just a bit more complicated than surrogacies where the Intended Parents used their own genetics.   

When a child is carried by a Gestational Carrier and the child was conceived with an egg which was produced by the body of the Intended Mother, the Intended Mother will be recognized as the legal mother through a pre-birth Order of Parentage.  If the Intended Mother is married, the provisions of the Vital Records Act which pertain to children born through sperm donation will apply and the Intended Mother’s spouse is presumed to be the other legal parent.  Note that this is a rebuttable presumption, however, and we are seeing divorce actions in which some Intended Mothers are seeking to rebut this presumption to remove the spouse from the child’s life.  Related parent adoptions would prevent these sorts of efforts and are, therefore, highly recommended, whether the conception was with donated eggs or donated sperm.   

Is traditional surrogacy (use of the surrogate’s genetic material) permitted in Tennessee?  Tennessee does not have any statute that precludes genetic surrogacy (traditional surrogacy); however, Tennessee has a Tennessee Supreme Court opinion that establishes that the ‘genetic surrogate’ is the legal mother of the child.  Tennessee also has statutes that make it a crime to accept anything of value in exchange for surrendering parental rights or to pay anything to anyone to induce the surrender of parental rights.  Hence, paid traditional surrogacy runs a considerable risk for the parties.  The statute also makes it a crime to facilitate anyone paying or accepting any consideration in exchange for a surrender of parental rights.  This has a considerable deterrent effect on attorneys being engaged in the drafting of traditional surrogacy contracts. 

Is compensated (paid) surrogacy allowed by Tennessee statute?  In practice?  Tennessee has no statute allowing or prohibiting surrogacy at all.  In practice most of the surrogacies in Tennessee have provisions for the support of the Gestational Carrier, which are often quite generous.   

Is uncompensated (expense reimbursement only) surrogacy allowed by Tennessee statute?  In practice?  Tennessee has no statute allowing or prohibiting surrogacy at all.  In practice, many Tennesseans engage in altruistic surrogacies with friends or family members.  These surrogacies follow the same procedures and timelines as any other surrogacy, including medical clearance for the surrogate, a written contract with each side being represented, and Court proceedings to secure parentage. 

Does Tennessee only permit a Carrier to be reimbursed for expenses (altruistic)?  Tennessee does not put any limitation on the funds being disbursed to Surrogates in gestational surrogacies.  Many practitioners' endeavor to draft contracts which are explicit that the disbursements to the Surrogates are for her support through the process of seeking a pregnancy, carrying and giving birth to the child, and recovering from the birth, rather than funds paid in exchange for the efforts of the Surrogate or payments in exchange for her time invested or for her pain and suffering.  These characterizations are to lessen the likelihood of the disbursements being deemed taxable.   

Are surrogacy agreements enforceable, void or prohibited in Tennessee?  In Tennessee, surrogacy contracts are, in general, enforceable.  Note, however, that some provisions in a surrogacy agreement could be deemed to be unenforceable.  Provisions requiring a surrogate to terminate a pregnancy are a prime example of an unenforceable provision.  

Do both Intended Parents both have to be genetically related to the child in Tennessee?  No.  We handle many surrogacy cases involving donated eggs or donated sperm.  

Does Tennessee require at least one Intended Parent to be genetically related to the child?  In Tennessee, to get an Order of Parentage, one of the Intended Parents must be a genetic parent of the child.  The non-genetic parent of a child conceived with a donated egg establishes his or her parentage through adoption after the birth.  

If a single intended parent uses surrogacy in Tennessee, do they have to be genetically related to the child?  Yes, generally.  Tennessee has no provision for a single person who is not a genetic parent of a child to be recognized as a legal parent, other than adoption.  If, for instance, a child conceived with a donated embryo were born in Tennessee through surrogacy, the Surrogate would be initially recognized as the legal mother and the Intended Parent would need to adopt from her (and her spouse).  Home studies, waiting periods, and scrutiny of the funds disbursed to the Surrogate would be involved.  The risks involved in such an adoption are such that practitioners routinely advise against a single person seeking parentage with a donated embryo and a Tennessee surrogate.  

Do Intended Parents in Tennessee have to be married?  In some cases, they do have to be married. The Intended Parents can have their parentage recognized in a pre-birth Order of Parentage (regardless of marital status) if they provided the sperm and egg from their own bodies.  If, however, they are working with donated eggs, they need to be married to have a Tennessee surrogacy journey.  Our State will only recognize the non-genetic parent as a legal parent through a post-birth adoption.  Tennessee only allows for related parent (step-parent) adoptions if the parties are married. 

Do two Intended Parents in Tennessee have to be opposite gender?  No.  Tennessee is fairly friendly to same-sex couples engaging in Surrogacy. 

Does Tennessee allow pre-birth parentage orders to be issued for surrogacy?  Yes.  Attorneys in this field routinely secure pre-birth Orders of Parentage to affirm the genetic parents of children carried by surrogates as the legal parents.  Non-genetic parents establish their parentage by adoption which is a straight forward matter with very little room for complications.  

Does Tennessee only allow a post-birth parentage order to be issued?  No.  Tennessee does not limit the timing of the parentage Orders.  Pre-birth Orders are the norm but, sometimes, a post-birth Order is required or recommended.  

Can you obtain both a pre and post birth order in Tennessee for the same child?  We don’t have any statues which would prevent this; however, it is routine to secure a pre-birth Order of Parentage if the genetic parent’s identity is known.  The non-genetic parent’s relationship with the child is established post-birth through adoption.  Many international couples work with surrogates in Tennessee and some of their nations require a post-birth Order.  In those situations, to establish that the surrogate’s consent was established after the child was born.  The Judges who granted pre-birth Orders have graciously entered post-birth Orders which are consistent with the prior Order and establish the Surrogate’s consent.  These post-birth Orders are apostilled or authenticated and then used in the Intended Parents home nations.  

Can you obtain a parentage order if only the carrier resides in Tennessee?  Yes.  We routinely get parentage orders in cases where the Intended Parents live far from Tennessee.  

Can you obtain a parentage order if only the intended parents reside in Tennessee?  Yes.  Subject matter jurisdiction for a parentage action in Tennessee requires “only minimum contact relevant to a child's being born out of wedlock.” Tennessee Code Section 36-2-307.  Thus, for instance, having the embryo transfer in Tennessee would be a minimum contact even if the surrogate returned to her own home in another State and gave birth there. Such a case would require consultations with an ART skilled attorney in the other State to make sure that the Tennessee parentage Order complies with the other State’s laws. 

Can you obtain a parentage order if only the birth occurs in Tennessee?  Yes.  For a Tennessee Court to enter an Order of Parentage, the parties must have minimum contacts to Tennessee that are relevant to a child being born out of wedlock.  The Intended Parents engaging in IVF and the embryo transfer occurring in Tennessee are minimum contacts just as is the birth occurring in Tennessee. 

Can you obtain a parentage order if only the medical procedures/IVF Clinic is in Tennessee?  Yes.  Medical procedures and care at a Tennessee fertility clinic that result in a child being born out of wedlock would constitute the minimum contacts for subject matter jurisdiction over a parentage action involving surrogacy. 

What is the basis for venue in Tennessee?  Generally, the venue lies in the County of residence of any party.  Venue in Tennessee is waivable unless there is a specific statute which ‘localizes’ a particular type of action to a particular County or unless the plaintiff and defendant reside in the same County.  There is no statute which ‘localizes’ venue in a parentage action to a certain County so as to prevent waiver of venue, except if an adoption has been filed.  The venue provisions of the parentage statutes say that the action may be filed where the mother resides, where the father resides, or where the child resides, unless an adoption has already been filed before the petition for a declaration of parentage is filed.  In that extremely rare case, the action must be filed in the County where the adoption was filed.  

Do results in Tennessee vary by venue?  The results of parentage actions involving surrogacy do not vary much from County to County in Tennessee.  Our parentage cases do not require that we prove that it is in the best interests of the child for the parentage Order to be granted, a standard which would result in widely varying results.  While the post-birth Adoption for the non-genetic parent can only be granted if it is in the child’s best interest, these are routinely granted as the child will be residing in the genetic parent’s home regardless of whether the Judge grants the adoption and because no one contests this finding.  

Is a hearing required for a parentage order in Tennessee?   Some Judges hear these cases on the pleadings alone.  Some Judges only require that the attorneys appear for the hearing to explain the case.  Some Judges do want everyone to attend the hearing – a circumstance which prompts us to seek a Court which will waive venue and will not require everyone to participate in the hearing. 

Does Tennessee have a passport office?  Passport applications can be accepted in most post offices in Tennessee.  There are no designated passport offices here so international parents seeking a passport for their babies go to other States.  One such office is in Atlanta and it is easily accessible from Tennessee by car or airplane.  

How long does it take to obtain a birth certificate in Tennessee?  Recent technological upgrades have made Tennessee’s Office of Vital Records much more efficient.  Birth certificates from regular Orders of Parentage are usually available within a couple of days after the hospital submits the birth certificate to Vital Records.  Birth certificate from adoptions to secure the parentage of a non-genetic parent take a little longer.  The staff in this office will work with international couples to get the birth certificate more quickly to help them achieve their goals of expediting their return to their home country.   Likewise, if there is a pressing need for expediting a birth certificate for a domestic family, Vital Records will help.  

For regular domestic surrogacies with a donated egg, the birth certificate after the adoption can take about a month to get finalized.  In the meantime, parents are encouraged to provide their certified copy of the Final Decree of Adoption to anyone needing proof of the parentage of a child. 

Will Tennessee vital records honor a parentage order from another state?  Tennessee will only honor an out-of-State parentage Order which complies with Tennessee’s laws as such laws are understood and interpreted by the Department of Health’s attorneys.  Several States do not require both the Intended Parents to be the genetic parents of the child and their Courts will grant parentage Orders which establish both the genetic and the non-genetic parent as legal parents.  These Orders will be rejected by the Office of General Counsel for the Department of Health of the State of Tennessee.  These Orders will need to be amended or the parties will need to secure an Order of Parentage from a Tennessee Court.

Does Tennessee vital records require a parentage order from another state to be registered?  Tennessee does have a version of the Uniform Enforcement of Foreign Judgments Act, however, this is used to register judgments which the parties are seeking to have enforced, such as through seizure of property or garnishing of wages.  This is inapplicable to surrogacy.  Some foreign parentage Orders are domesticated in Tennessee so that the Tennessee entities can rely on them.  

Any Order of Parentage which is submitted to Vital Records must be a certified copy of the Order, having on the copy verification that the copy is a photocopy of the original Order which is maintained in the Court Clerk’s Office.   

Vital Records does not require domestication of foreign decrees but some of the hospitals where surrogates give birth do require this.  To domesticate an out-of-State Order of Parentage, Counsel for the Intended Parents will file a domestication action and show the Court that the out-of-State Court had jurisdiction over the case when it was presented in the other State.  The merits of the case are not considered by the Tennessee domesticating Court.  

Note that domestication of a foreign Order doesn’t guarantee that the Office of Vital Records will honor it.  Before planning to rely solely on a Court Order entered in another State, talk to an ARTs skilled attorney in Tennessee.  Failing to do so may result in the Intended Parents having to hire a Tennessee lawyer for an Order of Parentage and Adoption after already paying an attorney in another State to establish parentage. 

How does the Tennessee birth certificate list same-sex parents?  Both same-sex parents will be listed on the birth certificate after the non-genetic parent has legal parentage established by adoption.   In accordance with State regulations pertaining to changes to State forms, the Office of Vital Records will place a line through the gender inappropriate word and type in the appropriate work.  This means that the birth certificate for the child of a same-sex male couple will have “Mother” interlineated and “Father” typed in.  The parties can opt for all gendered words to be interlineated and simply have “Parent” typed in throughout the certificate.  

Can an initial Tennessee birth certificate be obtained naming the biological parent and the carrier?  Yes.  Parents from some foreign countries need the initial birth certificate which shows the Gestational Carrier as the mother. If, for instance, a Surrogate carries a baby for an unmarried Intended Father or for a same-sex male couple, the child’s initial birth certificate will have the Gestational Carrier as Mother.  If the father is unmarried, after the issuance of as many copies of the initial birth certificate as he needs, the father’s counsel can advise the Office of Vital Records to issue a new birth certificate, in accordance with the Order of Parentage.  The new birth certificate will not list the surrogate at all.  That new birth certificate will say “not reported” in the space for “mother.”  Likewise, an international married same-sex couple may need copies of the birth certificate which show the Gestational Carrier as the Mother.  We can secure as many of these as the parents need, before the adoption is heard.  After the Final Decree of Adoption has been entered and the new birth certificate showing both fathers or showing the unmarried father has been prepared, securing additional copies of the initial birth certificate is likely to be impossible.  

Can the Tennessee birth certificate be amended to include only the biological parent or both intended parents?  Yes.  The Gestational Carrier’s name is removed from the birth certificate in all cases.  

Does the Tennessee amended birth certificates say “amended” on them?  No.  They look just like anyone else’s birth certificate except that they have the signature of an official in Vital Records rather than the signature of the hospital’s birth registrar.  

Can intended parents in a surrogacy obtain an adoption order in Tennessee?  Parents who used a donated egg to have their child will need to secure an adoption to establish the non-genetic parent as a legal parent.  Otherwise, Intended Parents in Tennessee do not need adoption decrees.  The description of surrogacy in our adoption code makes it clear that the Gestational Carrier has no obligation to surrender her parental rights under the adoption code in order for the Intended Parents who are the genetic parents to establish their parentage of the child.  Some international Intended Parents need post-birth judicial verification that the Surrogate has consented to the declaration that they are the parents.  Our Judges are quite hospitable and willing to enter the Orders needed to secure the full enforcement of the Orders of Parentage and the Final Decrees of Adoption entered in Tennessee. 

Assisted Reproduction law and surrogacy involves many complex issues. Parties who are contemplating engaging in a surrogacy arrangement in the State of Tennessee should not rely exclusively on these printed responses. All these issues should be discussed with a Tennessee attorney who is experienced in surrogacy law. Answers to these questions will be impacted by numerous circumstances that are unique to your surrogacy arrangement.