Facts: Mr. and Mrs. A. entered into a surrogacy contract with Surrogate and her husband, whereby Surrogate would serve as the gestational carrier of a child for Mr. and Mrs. A. donated eggs were fertilized with Mr. A’s sperm, and the resulting embryos were implanted into Surrogate’s womb. The procedure was successful, and Surrogate gave birth to twin boys.

All the parties to the surrogacy agreement filed a joint petition to establish parentage of the children. The joint petition stated Mr. A was the “intended and genetic father” of the children and that Mrs. A was the “intended mother.” It also stated that Surrogate was the gestational carrier of the children but not a biological parent or genetic donor.

The joint petition asking the court for a declaratory judgment declaring Mr. and Mrs. A as the legal parents of the children invest in them all rights and responsibilities of parenthood under Tennessee law, including the right to have their names entered on the children’s birth certificates as their parents.

The trial court granted the relief requested, declared Mr. and Mrs. A to be the sole legal parents of the children, and ordered the Tennessee Department of Health to issue original birth certificates reflecting Mr. and Mrs. A as the sole legal father and mother of the children.

The Tennessee Department of Health intervened in the case and sought to set aside the trial court’s declaration that Mrs. A is the legal mother of the children and is entitled to have her name listed on the birth certificates.

After considering the Department’s arguments, the trial court changed its mind and concluded Surrogate must be listed as the mother on the children’s birth certificates and that Mrs. A must adopt the children are in order to obtain parental rights.

Mr. and Mrs. A — joined by Surrogate and her husband — appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

Following the reasoning of In re Adoption of Male Child A.F.C., the Court affirmed the trial court’s ruling that Surrogate should be listed on the children’s birth certificates. That left the children’s legal maternity as the only remaining issue.

Surrogacy is generally defined as the process of carrying and delivering a child for another person. Surrogacy arrangements generally fall into two broad categories: traditional surrogacy and gestational surrogacy.

In a traditional surrogacy arrangement, a surrogate mother gives birth to a child by allowing her own eggs to be fertilized by artificial insemination. A traditional surrogate mother thus has a genetic connection to the child whom she carries and bears on behalf of others.

By contrast, in a gestational surrogacy arrangement, one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child. The key distinction is that a traditional surrogate is the biological mother of the child, whereas a gestational surrogate has no genetic relation to the child.

In a gestational surrogacy with egg donation, a gestational carrier carries and gives birth to a child as a result of fertilization and implantation of a third-party donor’s egg. Under those circumstances, the intended mother has no genetic relation to the child, and neither does the gestational carrier. That was the situation presented in this case.

In In re C.K.G., 173 S.W.3d 714 (Tenn. 2005), the Tennessee Supreme Court considered the issue of maternity where the gestational carrier of triplets obtained the eggs from an anonymous third-party donor. In that case, an unmarried couple — Charles and Cindy — sought assistance at a fertility clinic to have children. Anonymously donated eggs were fertilized with Charles’s sperm and implanted in Cindy’s uterus. As a result, Cindy gave birth to triplets. After the relationship between Charles and Cindy deteriorated, Charles sought custody of the three children on the grounds that Cindy lacked a genetic connection to the children and failed to qualify as their “mother” under Tennessee law.

After concluding that Tennessee law did not contemplate such a situation, the majority in In re C.K.G. devised a four-factor test for deciding the case.

First, the court described the genetics as “an important factor in establishing legal maternity.” It concluded that in cases like Cindy’s, “where a woman has become intimately involved in the procreation process even though she has not contributed genetic material, factors other than genetics take on special significance.”

Second, the court looked at “the intent to take on both parental rights and responsibilities.”

Third, the court found it appropriate to consider gestation as a factor in its analysis.

Fourth, the court considered “the nature of the controversy.” The court noted that in Cindy’s case, she was the only “mother” involved. Accordingly, the court limited its holding to cases where there is no controversy between the gestational carrier and the genetic “mother.”

Applying these four factors, the Tennessee Supreme Court in In re C.K.G. concluded that Cindy was the legal mother of the triplets.

Declining to apply that analysis, the Court concluded the case failed to present a justiciable controversy, reasoning:

Unlike the facts in In re C.K.G.…, there is no real legal controversy regarding the legal maternity of the children in this case. There is no disagreement among the parties to the surrogacy contract, nor is there a “tie” between two “mothers” who desire parental status. The only party challenging the legal maternity of Mrs. A is the Tennessee Department of Health, and it only does so in the context of this lawsuit. Under the circumstances of this case, the petitioners are not entitled to a declaration as to the children’s “legal mother.” The petitioners have failed to demonstrate a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant a declaratory judgment.” As the Middle Section of this Court stated in In re Adoption of A.F.C., courts must decide issues in surrogacy cases on “particularly narrow grounds given their inherently policy-laden and administratively and fiscally momentous nature.” The “important and consequential issue” of designating the legal mother “should be left for determination in a case that presents an actual, ongoing controversy, or . . . should be resolved by the legislature.” This case does not present an actual, ongoing controversy regarding the legal maternity of the children at issue. We therefore vacate the juvenile court’s finding regarding the legal maternity of the children.

The Court further noted that while “[t]he Department has the authority to issue birth certificates, [] it does not have the authority to declare who qualifies as the children’s legal mother.” Noting that all parties to the surrogacy agreement agree that Mrs. A is the mother of the children, the Court concluded there is no disagreement to resolve, nor is there a right for Mr. and Mrs. A to vindicate. The court stated “[t]he parties are not being compelled to do anything, or refrain from doing anything, based on a determination regarding who is the ‘legal mother.’ Our resolution of the issue would not resolve any real controversy.”

Accordingly, the trial court was affirmed in part and reversed in part.

K.O.’s Comment: Sounding like a broken record, the Court again pleaded with the Legislature to craft legislation that governs surrogacy situations. The Court said:

The best solution to this potential problem is the enactment of a comprehensive statute to ensure uniformity in the outcomes of surrogacy cases. Tennessee’s statutes offer limited guidance as to how courts should handle surrogacy disputes. Tennessee’s limited and outdated surrogacy statute lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements and leaves the parties and the courts ill-equipped to deal with the complex questions that inevitably arise in this area of the law. There can be no denying that the ability to create children using assisted reproductive technology has far outdistanced the legislative responses to the myriad of legal questions that surrogacy raises. Surrogacy arrangements present numerous legal obstacles, and courts have generally been required to muddle through the surrogacy thicket without legislative guidance. The increasing popularity of surrogacy will only cause these problems to proliferate. In In re Baby, the Tennessee Supreme Court again encouraged the Tennessee General Assembly “to follow the lead of other state legislatures that have enacted statutes to address the fundamental questions related to surrogacy.” We share in the court’s sentiment and urge the Tennessee General Assembly to give Tennessee’s courts and citizens guidance in this important and increasingly complex area of the law. By enacting a statute governing gestational surrogacy, the Tennessee General Assembly will afford infertile couples entering into a surrogacy contract confidence in the process and certainty in the results.

The Tennessee Supreme Court made this same plea when the In re C.K.G. case was considered in 2005 and Tennessee courts have repeated it in the handful of surrogacy cases that followed. Ten years later, our General Assembly has done absolutely nothing. Tennessee children deserve better.

In re Amadi A. (Tennessee Court of Appeals, Western Section, April 24, 2015).

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