Posted by: koherston | August 28, 2014

Surrogate Mother with No Legal Rights Listed as “Mother” on Child’s Tennessee Birth Certificate: In re Adoption of Male Child A.F.C.

Knoxville surrogacy attorneysFacts: A married couple, Intended Mother and Father, entered into a surrogacy agreement with Surrogate Mother. Per the surrogacy agreement, Intended Mother and Father obtained an egg from an anonymous, surrogate egg donor; the egg was fertilized in vitro with Father’s sperm; and the fertilized egg was implanted in Surrogate Mother’s uterus. The process was successful and Child was born.

The parties entered an agreed Order of Parentage declaring that Father was the legal father of Child and Intended Mother was the “legal mother” of Child. It further provided that Surrogate Mother should not be identified as the Mother of the baby on the baby’s birth certificate; if the hospital or agency’s policy precluded identifying Intended Mother as the mother of Child, then the agreed order said the mother should be listed as “unknown or unidentified.” The trial court also entered an order of adoption declaring Child to be the adopted child of Intended Mother.

The Tennessee Department of Health (“Department”) filed a motion to intervene asserting that Surrogate Mother’s name should be placed on the original birth certificate and that Intended Mother’s name could only be placed on a new birth certificate after she obtained an Order of Adoption.

The trial court ordered the Department to issue an original birth certificate showing Child’s mother as “unknown” in the place for listing the mother. The trial court also ordered the Department to issue a new birth certificate by adoption identifying Intended Mother as Child’s mother.

Both the Intended Parents and the Department appealed.

On Appeal: The Court of Appeals reversed the trial court.

The issue presented is who should be listed as Child’s mother on the certificate of live birth — Intended Mother, Surrogate Mother, or the unknown egg donor?

The Vital Records Act of 1977 (the “Act”) is codified as Chapter 3 of Title 68. Pursuant to Tennessee Code § 68-3-103, the Tennessee Department of Health is charged with the responsibility of, inter alia, developing regulations “necessary for the creation and efficient performance of an adequate system of vital records, and give instructions and prescribe forms for collecting, transcribing, compiling and preserving vital records.” The information collected on the records is to be “such as will aid the public health of the state.”

Federal law establishes the National Center for Health Statistics (the “Center”) and directs the Secretary of Health and Human Services to act through the Center “for the purpose of improving the effectiveness, efficiency, and quality of health services in the United States.” 42 U.S.C.A. § 242k(a). “To assist in carrying out this section,” the Secretary must “cooperate and consult with…State and local health departments and agencies.” In order to “secure uniformity in the registration and collection of mortality, morbidity, and other health data,” it is the Secretary’s responsibility to prepare and distribute suitable and necessary forms for the collection and compilation of such data.

The Center has promulgated a U.S. Standard Certificate of Live Birth (the “standard certificate”). In addition to recording the names of the parents and child, the standard certificate includes detailed medical information regarding the mother’s pregnancy, including the date of her first and last prenatal care visits and the number of total visits; height; prepregnancy weight and weight at delivery; whether she received food assistance; number of previous births, pregnancies, and the outcomes of those events; whether she smoked cigarettes before and/or during the pregnancy; and the date of her last menses. The form includes detailed information about the birth itself, including risk factors of the pregnancy; obstetric procedures; infections present and/or treated during the pregnancy; onset of labor; characteristics of labor and delivery; method of delivery; and maternal morbidity. Finally, it includes information regarding the newborn. The guide to completing the birth certificate advises that “all information on the mother should be for the woman who gave birth to, or delivered the infant.”

After reviewing the record, the Court concluded:

As we consider the intent of and purpose served by the Act, we have determined that the “mother” to be entered on the certificate of live birth required by Tennessee Code § 68-3-301 is the same as that used in preparing the standard certificate, i.e., the woman who delivers the child. The purpose of the Act, in the broadest sense, is to aid the public health of the state; to that end, the Act aims “to promote and maintain nationwide uniformity in the system of vital records” by mandating that birth certificates reflect the recommendations of the Center. Similarly, the goal of 42 U.S.C.A. § 242k is to improve health services in the United States. Using the same definition of mother enables the state and federal governments to collaborate in pursuit of their respective goals.

Construing the Act in this fashion is also consistent with the definition of “live birth” at Tennessee Code § 68-3-102:

(10) “Live birth” means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of the pregnancy, that, after expulsion or extraction, breathes or shows any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Heartbeats shall be distinguished from transient cardiac contractions, and respirations shall be distinguished from fleeting respiratory efforts or gasps;

Thus, “mother” as used in the Act is the woman who produced the “live birth.”

Accordingly, the trial court was reversed and the Tennessee Department of Health was directed to issue an original birth certificate listing Surrogate Mother as Child’s mother.

K.O.’s Comment: It is worth noting this outcome will not change Intended Mother’s entitlement to a new birth certificate by adoption that lists her as Child’s mother. It only says the original birth certificate must list the mother who actually delivered the baby.

In re Adoption of Male Child A.F.C. (Tennessee Court of Appeals, Middle Section, July 16, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


Responses

  1. What tangled webs we weave when we start fooling around with Mother Nature!


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