Facts: Davis and Reilly were two married women who had a child together through artificial insemination. They agreed Reilly would be the biological birth parent. Reilly gave birth to Child, and both were listed as parents on Child’s birth certificate.
The following year, they discussed having a second child. They also began experiencing marital problems. Reilly began a relationship with Man, who she met through a dating app. Reilly and Man met once or twice a week for unprotected sex. This continued until Reilly learned she was pregnant, at which point she immediately broke off her relationship with Man.
Reilly told Davis about the pregnancy but did not tell her how the child was conceived or the identity of the father, and Davis never asked. They held themselves out to friends and family as parents of the unborn child.
Reilly gave birth to Baby. Davis was not listed as a parent on Baby’s birth certificate, and she never asked or took any other steps to be included on the birth certificate.
For three years, Reilly and Davis parented both Child and Baby.
Davis filed for divorce in listed both Child and Baby as children of the marriage.
Reilly admitted Child was a child of the marriage but claimed Baby resulted from “an extramarital affair.”
Reilly petitioned the juvenile court to establish Man’s paternity of Baby. DNA testing confirmed his paternity.
Reilly then petitioned the divorce court to suspend Davis’s visitation with Baby.
At the hearing, Davis testified she presumed Reilly was meeting a sperm donor to conceive through artificial insemination. Davis testified that Reilly’s relationship with Man was a “planned consensual relationship for the specific purpose of insemination of” Reilly.
The divorce court found both Reilly and Davis to be the parents of Baby because their efforts were “tantamount to artificial insemination” because “it was the intention of the parties to parent a second child and Ms. Reilly undertook to become pregnant.” Thus, both children were considered children of the marriage and both parties vested with the rights and responsibilities of parenthood.
After the trial court denied Reilly’s motion for interlocutory appeal, Reilly filed a Rule 10 application to the Court of Appeals, and the application was denied.
Reilly then filed a Rule 10 application to the Supreme Court, which was granted. Thus, the trial court’s ruling went to the Tennessee Supreme Court for review. The Supreme Court issued its ruling after waiving the requirement of filing a record, additional briefing, and oral argument.
On Appeal: In an unsigned, unanimous order, the Tennessee Supreme Court reversed the trial court’s ruling.
Tennessee’s artificial insemination statute can establish the parentage of children born during a same-sex marriage because of artificial insemination.
Artificial insemination is defined as the “introduction of semen into the uterus or oviduct by other than natural means … in order to increase the probability of conception.”
The Supreme Court found the trial court erred in interpreting Tennessee’s artificial insemination statute to apply to a child conceived through sexual intercourse:
At a minimum, artificial insemination must involve the introduction of sperm into the vagina by means other than sexual intercourse. Here, the uncontradicted evidence establishes that Reilly received [Man’s] sperm exclusively through sexual intercourse. Tennessee Code Annotated § 68-3-306 applies only when a child is “born to a married woman as a result of artificial insemination.” [Baby] was born to Reilly as a result of sexual intercourse, not artificial insemination.
Notably, the [divorce] court did not find that [Baby] was conceived through means other than sexual intercourse. It instead concluded that the circumstances presented here were “tantamount to artificial insemination” because “it was the intention of the parties to parent a second child” and “Reilly undertook to become pregnant” by engaging in sexual intercourse with [Man]. But § 68-3-306 applies only when a child is born “as a result of artificial insemination.” It does not permit a court to establish parentage based on “efforts” that are “tantamount to artificial insemination” or the parties’ intentions. The [divorce] court’s ruling extended the statute well beyond its plain and ordinary meeting. Because [Baby] was not conceived through artificial insemination, the [divorce] court erred by relying on § 68-3-306 to establish parentage in this case.
The Supreme Court reversed the trial court’s ruling and sent the case back to the divorce court for further proceedings.
K.O.’s Comment: Shout out to Knoxville lawyer Ben Houston II for obtaining what might be the fastest and easiest Supreme Court victory ever.
Source: Davis v. Reilly (Tennessee Supreme Court, January 24, 2024).
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