Facts: Compher and Whitfield are two women who never married but maintained a committed relationship and domestic partnership for 17 years. Each had children from previous relationships. They agreed that Whitfield would be a stay-at-home parent while Compher would be the breadwinner.

Ten years into their relationship, they decided to have a child together. They agreed that Whitfield would carry the child, they would use anonymous donated sperm to conceive the child, and they would be equal parents despite their different biological connection to the child.

For approximately seven years after the child was born, they co-parented as equal parents and both held the child out as the child of both parties.

When the relationship ended and Compher moved out of the home, Whitfield cut off the child’s contact with Compher.

Compher petitioned to establish parentage and to be recognized as a legal parent of the child.

Relying on Pippin v. Pippin, Whitfield moved to dismiss for lack of standing to file a petition to establish parentage. Pippin was a parentage action involving eight same-sex relationship where the petitioner sought to be recognized as a legal parent of a child born via artificial insemination. Applying Tennessee’s artificial insemination statute, the Court of Appeals held the statute did not provide the petitioner with standing because the parties were never married.

The trial court granted Whitfield’s motion and dismissed Compher’s petition.

Compher appealed.

Shortly after the appeal was filed, the Court of Appeals released its opinion in Potts v. Potts. Potts involved a similar situation except the children were conceived by in vitro fertilization. The Court of Appeals held that Tennessee’s in vitro fertilization statutes intend for contract principles—not biology—to control the question of parentage. In Potts, the nonbiological parent was found to have the same parental rights as the biological parent.

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

Compher argued the trial court’s finding of no standing should be reversed because it relies on constitutionally impermissible distinctions based on sex and the type of assisted reproduction used to create the child. She argued there is no functional difference between a child conceived by embryo transfer and the child conceived by artificial insemination.

The Court was not persuaded:

Our Supreme Court has explained that the General Assembly is better suited than the courts in such an issue as deciding whether generally to subject procreation via technological assistance to government oversight, and if so, to determine what kind of regulation to impose. Why there is such a distinction between these two types of technologically assisted procreation is a question we are neither equipped nor inclined to answer. This Court is not permitted to question the wisdom of the statutory scheme. While the courts have the power to determine public policy in the absence of any constitutional or statutory declaration, we decline to do so here where the statutory language and the caselaw supports the conclusion we have reached.

[T]ennessee’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.” Here, the parties were in a same-sex domestic partnership and chose to have a child by artificial insemination, but they were not married nor did they choose to marry any time after the United State Supreme Court … legalized same-sex marriage. Ms. Whitfield is the individual who gave birth to the child and who is biologically and genetically connected to the child. While Ms. Whitfield had Ms. Compher’s consent to proceed with the artificial insemination, they were not married, which the artificial insemination statute is predicated upon.

The Court affirmed the trial court’s dismissal of Compher’s petition for lack of standing.

Compher v. Whitfield (Tennessee Court of Appeals, Middle Section, June 1, 2022).

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