Facts: Two women, Pamela and Shannon, married.

Pamela had a son from an earlier relationship, but they wanted to have children of their own, so Shannon conceived via artificial insemination. A married friend—Mr. Compton—supplied semen in a specimen cup used to impregnate Shannon.

Two children were conceived.

Several years later, Pamela filed for divorce.

Mr. Compton, who never took on the role of the father to either child, was allowed to intervene in the divorce to establish parentage and seek visitation.

It was neither Pamela nor Shannon’s intent for Mr. Compton to be a father figure to the children.

The trial court divorced Pamela and Shannon, found Pamela to be the legal parent of the children, and entered a parenting plan. It also ruled that Mr. Compton “is not the legal father of the children … and has no right to visitation with [the] children.” Mr. Compton was deemed “merely a sperm donor … with no intent to be a legal parent.”

Mr. Compton appealed.

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

The only noteworthy argument asserted by Mr. Compton is his claim that Tennessee’s artificial insemination statute does not establish Pamela as a legal parent of the children born during the marriage.

Tennessee’s artificial insemination statute—Tennessee Code Annotated § 68-3-306—states:

A child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.

The U.S. Supreme Court’s decision in Obergefell v. Hodges established a constitutional right to marriage for same-sex couples, holding that “same-sex couples may exercise the fundamental right to marry,” and that state laws are “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Notably, the Obergefell Court recognized the “constellation of benefits that the States have linked to marriage” includes:

• taxation;
• inheritance and property rights;
• rules of intestate succession;
• spousal privilege in the law of evidence;
• hospital access;
• medical decision-making authority;
• adoption rights;
• the rights and benefits of survivors;
• birth and death certificates;
• professional ethics rules;
• campaign-finance restrictions;
• workers compensation benefits;
• health insurance; and
• child custody, support, and visitation rules.

The Supreme Court further explained that because “States have contributed to the fundamental character of the marriage right by placing the institution at the center of so many facets of the legal and social order[,]” there should be “no difference between same- and opposite-sex couples with respect to [these rights].”

Two years later, the U.S. Supreme Court decided Pavan v. Smith, where two married, same-sex couples who conceived their children through anonymous sperm donation sought to list both the birth mother and her same-sex spouse as parents on their children’s birth certificates in Arkansas, where the artificial insemination law only applied to “the woman and the woman’s husband,” just like Tennessee’s.

The Pavan Court held that under the challenged law, “same-sex parents in Arkansas lacked the same rights as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling the child in school.” Thus, the Supreme Court clarified that same-sex couples are entitled to not only the symbolic recognition of marriage, but also to all the benefits attendant to it.

With these principles in mind, the Court here held that Tennessee’s artificial insemination statute must be interpreted in a gender-neutral manner:

Tennessee’s artificial insemination statute provides married couples who pursue artificial insemination a form of legal recognition by deeming the child born during their marriage to be their “legitimate child.” … Construing Tennessee Code Annotated § 68-3-306 literally, in a non-gender-neutral manner, places it at odds with the United States Supreme Court’s holdings in Obergefell and Pavan because it would deny same-sex married couples the same “constellation of benefits” that married opposite sex couples enjoy. Specifically, it would deem a child born to a married woman as a result of artificial insemination to be the legitimate child of a male spouse of that woman but not the legitimate child of a female spouse of that woman…. [C]ourts have a duty to construe a statute in a way that will sustain it and avoid constitutional conflict if such a reasonable construction exists.

*     *     *     *     *

Tennessee Code Annotated § 1-3-104(b) states that “[w]ords importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest.” By virtue of Tennessee Code Annotated § 1-3-104(b), and in light of the principles gleaned from Obergefell and Pavan, we hold that the word “husband” in Tennessee Code Annotated § 68-3-306 must be interpreted to include both the male and female genders. Therefore, § 68-3-306 applies in a gender-neutral manner to Pamela who was Shannon’s wife during the artificial inseminations, and both children born to Shannon via artificial insemination during her marriage to Pamela are “deemed” to be Pamela’s “legitimate children.”

The Court affirmed the trial court’s judgment finding Pamela to be the legal parent of the children born during the marriage. Mr. Compton’s other arguments were also rejected, thereby confirming his status as “merely a sperm donor.”

K.O.’s Comment: (1) The same issue presented here was first presented in Witt v. Witt, a 2018 case where 53 Republican legislators forever disgraced themselves by attempting to intervene in a same-sex couple’s divorce.

First, can you even imagine that happening? The thought of such clownish and hateful interference into an intensely private, family matter by elected officials seeking a political stunt for their personal gain still makes my blood boil. Such people lack all sense of decency.

Second, the issue was avoided in Witt because the case was moot after the parties resolved all issues in their divorce.

(2) This same issue was presented a second time in Pippin v. Pippin, a 2020 case with similar facts except the same-sex couple weren’t married when the child was conceived through artificial insemination because Tennessee prohibited same-sex marriage in violation of their constitutional rights.

In Pippin, a divided Court reached the opposite result, holding that the non-birth parent had no legal rights because she wasn’t married to the birth mother when the child was conceived. A gender-neutral interpretation of the statute per Tennessee Code Annotated § 1-3-104(b) was not permitted because “Inasmuch as the Legislature has defined “father” [], we cannot give a gender-neutral meaning to that term….”

Judge Bennett wrote a persuasive dissent explaining why, like here, “the word ‘husband’ in § 68-3-306 must be interpreted to include both the male and female genders…. There is no difference between Sandra and the “husband” in § 68-3-306 except for a marriage that the State of Tennessee would not allow.”

Here’s part of the comment I wrote on the Pippin opinion:

The Legislature’s failure to update Tennessee law after the U.S. Supreme Court ruled that same-sex couples are entitled to the same constitutional rights enjoyed by opposite-sex couples is an abdication of their responsibility to Tennessee’s children. They’ve known about our outdated laws for five years but did nothing. Their inaction in the face of this knowledge brings shame and dishonor to themselves and this State.

The Tennessee Bar Association must form a task force to create a legislative package that brings Tennessee’s discriminatory laws into compliance with the U.S. Constitution. Force our legislators to vote. Don’t allow them to continue hiding through inaction. The child in this case needs both of his parents and will be harmed without them both. Preventing that harm to this child and others like him is everyone’s responsibility.

This is not about same-sex marriage. That ship has sailed. It’s now about protecting children in all families, not just opposite-sex families.

I wrote a similar comment earlier this summer in response Potts v. Potts, a case involving a child conceived to a same-sex couple through in vitro fertilization:

Over six years ago, the Tennessee Attorney General informed the legislature that many Tennessee laws are unconstitutional because they use gender-specific words like husband, wife, father, mother, man, woman, etc.

What action has the legislature taken in the past five years to modernize what it knows are outdated, unconstitutional laws that affect Tennessee children?

Nothing.

Not. One. Thing.

Children have suffered unnecessarily, and more children will suffer, until our elected officials fix the problems they know exist but choose to ignore.

Harrison v. Harrison (Tennessee Court of Appeals, Middle Section, October 15, 2021).

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