Representative Terry Lynn Weaver (R-Lancaster) proposed HB 1406, which is intended to repeal the current statute regarding children born through artificial insemination.
“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.” (TCA 68-3-306)
A lot of my friends who’ve seen this story have questions why “legitimacy” is even a thing here in the year 2017. I’ll tell you why: parents.
NOTE: I am not a lawyer. This is not legal advice. This is just my personal read on this law and why it is relevant in the lives of people in Tennessee and elsewhere.
In family law, the question of who the parents of a child are is of paramount importance in determining things like custody and visitation.
In most places, it’s my understanding that if a woman gives birth to a child and she is married, then the husband is assumed, by the state, to be the father and he’s role as parent is assumed as a matter of course. This means that he can visit the child and if the couple sues for divorce, he could argue for custody. Because he’s recognized by the state to be a parent.
If a child is born to a woman out of wedlock — that is to say, the child is “illegitimate” — then in many jurisdictions, her partner has to file to be recognized as a parent to the child for the same purposes.
This is why the “consenting husband” part is in there. He’s married to her, so he would be recognized as a parent, too. If he’s not consenting, I think that would be a whole separate can of worms on a lot of levels.
In California, there is a lot of law and legal precedence in place that protects the rights of people like me and my husband. Thanks to that and our contract with our surrogate, when our children are born, our lawyer will immediately file to establish our parentage. Once we are officially the parents of our children, then we are recognized (thanks to equal protection) in all 50 states as the parents of our children.
But in Tennessee, this law would, I believe, supersede any contracts on the matter. If we did what we are doing there in Tennessee, then our surrogate and her husband would be declared the parents of our children. If we tried to take the baby home with us, we could be charged with kidnapping.
The obvious work around is that we would have to immediately file for adoption of any babies.
The way this is written, I assume this would apply to all children born to parents in this manner. So, if their parents didn’t adopt their children, parentage would default back to the surrogate. The result would be chaos.
Looking ahead, my suggestion to would-be parents in Tennessee who are considering artificial insemination would be that they try to carry out their plans in a state with better protections for their parental rights. I know not everyone can just come to California, but maybe see what they’re doing in Georgia or Illinois.
Now, I think it’s pretty clear that this is intended to hamper and aggravate LGBT parents since they would be disproportionately impacted by this law. Representative Weaver’s involvement in a divorce case last year in which she and others argued that the daughter of a lesbian couple was not the “legitimate” child of the woman who did not give birth to the child seems to give further weight to that hypothesis.
I doubt this law will pass. Lawmakers in Tennessee seem to do a lot of pandering to their base by introducing ridiculous anti-gay laws. They only rarely pass. This particular bill doesn’t seem to have any real value to the state and would cause a lot of problems for gay and straight couples across the state.
Nevertheless, it’s infuriating that they would do things like this.
So, you see, it’s not about being allowed to call a few more people “bastards” without sacrificing any accuracy for the term. It’s about who the state sees as the parents of these children.