IN RE C.K.G., C.A.G., & C.L.G.
No. M2003-01320-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
April 15, 2005 Session Filed October 6, 2005
Appeal by permission from the Court of Appeals, Middle Section. Juvenile Court of Williamson County, No. 38410, Lonnie R. Hoover, Judge.
FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON, JANICE M. HOLDER, and William M. Barker, JJ., joined. ADOLPHO A. BIRCH, JR., filed a dissenting opinion.
Robert L. Jackson and Larry Hayes, Jr., Nashville, Tennessee (on appeal to the Supreme Court), and P. Edward Schell, Franklin, Tennessee (at trial and on appeal to the Court of Appeals), for the appellant, Dr. Charles K. G.
Pamela M. Spicer, Brentwood, Tennessee (on appeal), and W. Allen Barrett, Nashville, Tennessee (at trial), for the appellee, Ms. Cindy C.
OPINION
I. Factual and Procedural Background
Dr. Charles K. G. and Ms. Cindy C.2 first met in 1993 while working at Vanderbilt University Medical Center in Nashville. Cindy was a nurse practitioner who managed a department through which Charles, then a medical resident, rotated. Charles and Cindy began dating in 1994. After an initial period of closeness, they maintained for several years an unsteady dating relationship which included an extended period of estrangement.
In 1999, Charles and Cindy not only reunited as an unmarried couple but also soon thereafter began discussing having a child together. By this time Cindy was forty-five years old and Charles was also in his mid-forties. Charles had never had children. He had not grown up in Tennessee, and a December 1999 visit to his birthplace influenced him; he wanted to be a father. Even though Cindy had at least two adult children from prior marriages as well as grandchildren, she was amenable to starting a family with Charles. However, given her age, Cindy was concerned about the viability of her ova, or eggs.
Having decided to have a child, Charles and Cindy pursued in vitro3 fertilization through the
I, Cindy (wife), understand that the child(ren) conceived by this method will not have my genetic material, but will have that of the oocyte [egg] donor and my husband [sic]. However, regardless of the outcome, I will be the mother of any child(ren) born to me as a result of egg donation and hereby accept all the legal responsibilities required of such a parent.
This document was signed by Cindy as “wife” and by Charles as “husband” and was witnessed and signed by a physician who represented that he had fully explained the procedure to Charles and Cindy and had answered all their questions. However, Charles and Cindy executed no other agreements concerning their intentions as to parentage or surrogacy.
Shortly thereafter, Charles paid the Fertility Center $10,000 for the procedure of having two anonymously donated eggs fertilized with Charles‘s sperm and inserted in Cindy‘s uterus. Charles intended for them to conceive only one child (presumably two eggs were used to increase the procedure‘s odds of success). After fertilization, one of the eggs divided, resulting in the development of three embryos.4 All three embryos flourished; Cindy had become pregnant with triplets.
During Cindy‘s pregnancy, Charles began residing consistently at Cindy‘s home. Due to complications with the pregnancy, Cindy took an early leave from her job. When she was placed on bed rest, Charles maintained the household and cooked for her. On February 21, 2001, Cindy gave birth via caesarian section to three children: C.K.G., C.A.G., and C.L.G. Tennessee Department of Health birth certificates for the children identify Charles as the father and Cindy as the mother.
Although Charles had never promised to marry Cindy, he represented that he desired permanence and stability with her. Further, Cindy understood and expected that they would raise the children together as mother and father. In fact, Cindy even sought assurance from Charles that she would not have to rear them by herself. Cindy stayed home with the triplets on maternity leave until June 2001 when she returned to work four days per week. Having set aside money in
After hiring a nanny, Charles and Cindy‘s relationship soon deteriorated. Cindy alleged that Charles began cultivating or renewing relationships with several other women; Charles admitted to having sex with another woman during a December 2001 trip to London, England. Cindy further alleged that once their relationship had begun to deteriorate, Charles not only became dramatically less involved with the children, but also began withholding financial support from them. In April 2002, after utility service to their home had been cut off, Cindy filed a petition in the juvenile court of Williamson County to establish parentage and to obtain custody and child support.
In response, Charles argued that because Cindy lacks genetic connection to the children, she fails to qualify as the children‘s “mother” under Tennessee‘s domestic relations statutes. Contending that Cindy thus lacks standing as a parent, Charles sought sole and exclusive custody of the triplets. Charles further denied that he had failed to support the children financially and also alleged that Cindy was often absent from home on account of her part-time pursuit of a master‘s degree in business administration. Cindy conceded that Charles increased his involvement with the children after she filed suit. A pendente lite order required Charles to pay Cindy $3,000 per month for child support. Charles and Cindy continued to live together pending trial.
In anticipation of trial, Charles and Cindy stipulated that: (1) eggs donated by an anonymous third-party female were fertilized with Charles‘s sperm and implanted in Cindy‘s uterus; (2) Cindy carried the resulting embryos to term and gave birth to triplets; (3) based on genetic testing, Charles is the biological father of all three children; (4) based on genetic testing, none of the children obtained genetic material from Cindy; and (5) the genetic testing was valid.
After a bench trial, the juvenile court ruled that Cindy had standing to bring a parentage action “as legal mother of these three (3) minor children with all the rights, privileges, and obligations as if she were their biological mother.” The juvenile court reasoned that Cindy “is the birth mother and always had the intent to birth these children for herself and [Charles].” Having so decided, the juvenile court addressed the question of custody and support. The court concluded that in light of all the circumstances, Charles and Cindy were both good and caring parents. Based upon their “comparative fitness . . . as that affects the best interests of the minor children,” the court awarded joint custody with Cindy designated as the primary custodial parent. The court further ordered certain visitation rights in favor of Charles and required him to continue to pay Cindy child support in the amount of $3,000 per month. Charles appealed as of right.
The Court of Appeals affirmed the judgments of the juvenile court. Concerning the question
We granted Charles‘s application for permission to appeal.
II. Analysis
In this case, an unmarried, heterosexual couple—Charles and Cindy—had children by obtaining eggs donated from an anonymous third-party female, fertilizing the eggs in vitro with Charles‘s sperm, and implanting the fertilized eggs in Cindy‘s uterus. Even though Cindy had no genetic connection to the three children to whom she eventually gave birth, she and Charles intended to rear the children together as mother and father. When the couple‘s relationship deteriorated, Cindy filed a parentage action seeking custody and child support from Charles. In response, Charles claimed that Cindy had no standing as a parent because, lacking genetic connection to the children, she failed to qualify as a parent under Tennessee parentage statutes. On this basis, Charles sought sole and exclusive custody. The facts of this case thus present us with a question of first impression in Tennessee: under such circumstances, who as a matter of law is the children‘s mother? We also must decide secondary questions pertaining to comparative fitness, custody, visitation, and child support.
It is helpful to explain further how the primary issue which we must decide is distinct from other kinds of maternity disputes. This case is distinguishable from maternity disputes within the context of “traditional surrogacy,” such as the situation involved in In re Baby M, 537 A.2d 1227 (N.J. 1988), superseded by statute as recognized in In re Adoption of Children by G.P.B., 736 A.2d 1277 (N.J. 1999). In a traditional surrogacy arrangement, a surrogate “mother” gives birth to a child by allowing her own eggs to be inseminated. A traditional surrogate mother thus has a genetic connection to the child whom she nonetheless bears on behalf of others. In contrast, “gestational surrogacy” involves in vitro fertilization of an intended “mother‘s” egg which is then implanted for gestation purposes in a genetically-unrelated surrogate “mother.” See Ardis L. Campbell, Annotation, Determination of Status as Legal or Natural Parents in Contested Surrogacy Births, 77
Our case is closer in kind to “gestational surrogacy with egg donation” where a woman carries and gives birth to a child as a result of fertilization and implantation of a third-party donor‘s egg. See Campbell, 77 A.L.R.5th at 574, § 2[a]. Under such circumstances, both the egg donor and the gestational carrier, or gestator, may perform the role of surrogate. A “surrogate” is generally defined as “a person appointed to act in place of another . . . .” Webster‘s Third New Int‘l Dictionary of the English Language Unabridged 2302 (Philip Babcock Gove ed. 1971). The egg donor is a surrogate insofar as she provides eggs in place of and on behalf of another woman who cannot produce viable eggs. The gestator may also play the role of surrogate by carrying the child to term in place of and on behalf of another.
In this case, however, an anonymous, surrogate egg donor provided eggs to a gestator (Cindy) who gave birth ostensibly for her own benefit. Whether Cindy may be classified as a gestational “surrogate” is thus problematic, for the question is unavoidably tied up with disputed legal questions. Cindy would argue that she is not a gestational “surrogate” because she gestated and gave birth to the children on behalf of both Charles as father and herself as mother. However, Charles contends that Cindy was merely a gestational “surrogate” on behalf of Charles as the sole legal parent.
A. The Question of Maternity
In addressing the question of maternity, we review findings of fact by the trial court de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. See
1. The Impact of Modern Reproductive Technology on the Legal Definition of Parenthood
“Historically, gestation proved genetic parentage beyond doubt, so it was unnecessary to distinguish between gestational and genetic mothers.” Roosevelt, 39 Santa Clara L. Rev. at 97. However, recent developments in reproductive technology have caused a tectonic shift in the realities which underlie our legal conceptions of parenthood.
With the technological development of a number of processes of procreation, most notably in vitro fertilization, the conceptive and gestational phases of reproduction can now be separate. Thus, the genetic and gestational mothers of a child are no longer necessarily the same person, which can result in a child having several possible parents. These new reproductive technologies and arrangements give rise to the fundamental question of who should be recognized as the parents of
a child born as a result of various parties making distinct contributions to the process of procreation.
Campbell, 77 A.L.R.5th at 574, § 2[a].
This technological fragmentation of the procreative process, insofar as it includes techniques for egg and sperm donation and preservation, has engendered a bewildering variety of possibilities which are not easily reconciled with our traditional definitions of “mother,” “father,” and “parent.”
We now live in an era where a child may have as many as five different “parents.” These include a sperm donor, an egg donor, a surrogate or gestational host, and two nonbiologically related individuals who intend to raise the child. Indeed, the process of procreation itself has become so fragmented by the variety and combinations of collaborative-reproductive methods that there are a total of sixteen different reproductive combinations, in addition to traditional conception and childbirth.
John Lawrence Hill, What Does It Mean to Be a “Parent“? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. Rev. 353, 355 (1991). The degree to which current statutory law governs or fails to govern these realities provides the initial framework for our analysis.
2. The Limited Scope of Tennessee‘s Parentage Statutes
Parentage is an area of law governed primarily by statute. Unfortunately, Tennessee‘s parentage and related statutes do not contemplate many of the scenarios now made possible by recent developments in reproductive technology. We now review Tennessee‘s statutory scheme. When construing statutes, we must “ascertain and carry out the legislature‘s intent without unduly restricting or expanding a statute‘s coverage beyond its intended scope.” Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). “In ascertaining the intent of the legislature, this Court may look to ‘the language of the statute, its subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.‘” State v. Gilliland, 22 S.W.3d 266, 275 (Tenn. 2000) (quoting State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997)).
The Tennessee Code provides a single cause of action for establishing parentage.
The parentage statutes define “mother” as “the biological mother of a child born out of wedlock.”
The adoption statutes define “biological parents” as “the woman and man who physically or genetically conceived the child.”
On the other hand, “genetically conceived” means having caused conception in a manner pertaining to “genetic makeup and phenomena.” Id. at 946 (defining “genetics“). Genetic conception thus entails the contribution of one‘s genes5 to a child. By providing for genetic conception in addition to physical or natural conception, Code section 36-1-102(10) implicitly accounts for genetic procreation via technological assistance. If practicable, a statute is to be construed so that its component parts are reasonably consistent. Marsh v. Henderson, 424 S.W.2d 193, 196 (Tenn. 1968). “Every word used is presumed to have meaning and purpose, and should be given full effect if so doing does not violate the obvious intention of the Legislature.” Id.
We agree with the Court of Appeals that Cindy falls outside the statutory scope of the parentage and adoption statutes, which do not expressly control the circumstances of this case. It is appropriate to construe the parentage and adoption statutes narrowly insofar as this case involves such fundamental constitutional rights as parenthood and the right to procreate. See Hawk v. Hawk, 855 S.W.2d 573, 578–79 (Tenn. 1993); Davis v. Davis, 842 S.W.2d at 600–01. Further, we refrain from “speculating about the significance of provisions which are not included in [a] statute,” finding it more effective to “consider the words actually used.” Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997).
First, although the definition of “biological parents” in
Second, even the definition of “surrogate birth” in
Third, the parentage statutes generally fail to contemplate dispute over maternity. For example, the rebuttable presumptions of parentage provided in
The legislative history of the parentage statutes reinforces our conclusion that they fail to contemplate or to control the circumstances of this case. Where the plain language of a statute does not clearly resolve an issue, it is appropriate to consider the history and purpose of legislation in order to ascertain legislative intent. See Lavin v. Jordon, 16 S.W.3d 362, 365–66 (Tenn. 2000).
In 1997, the Tennessee General Assembly completely overhauled the statutes concerning paternity and legitimation. See 1997 Tenn. Pub. Acts ch. 477. The primary purpose of this change was to streamline and to simplify the formerly separate causes of action for paternity and legitimation by combining them into a single parentage action. See
Significantly, the legislative history shows that the current parentage statutes were not designed to control questions of parentage where sperm or egg donation is involved. In response to the observation that the new parentage statutes could potentially allow a sperm donor to file a parentage claim, Mr. Steve Cobb stated as follows:
I can tell you that the clear intention, discussed intention, of this [bill] was not to deal with sperm donors at all. . . . [W]e wanted to put that off for another day. . . . The intent, and it should be stated by the sponsor in a colloquy on the floor if necessary, is not to affect that issue at all.
Tape S-Jud. #4 (Tennessee Senate Judiciary Committee May 13, 1997). Concerning the question of maternity where egg donation is involved, the legislative history contains no indication that this matter was ever contemplated as a potential issue.
In sum, we conclude that Tennessee‘s parentage and related statutes do not provide for or control the circumstances of this case. Contrary to the position taken by the dissent which would restrict the basis for legal maternity to genetic consanguinity alone, we determine that these statutes simply do not apply to all conceivable parentage determinations. In this regard, we agree with the Court of Appeals.
3. Tests for Legal Maternity in Other Jurisdictions
In the absence of express guidance from the legislature, the Court of Appeals looked to case law from other jurisdictions to resolve the dispute of maternity in this case. Among the few jurisdictions which have addressed cases like this one, where a gestational carrier implanted with donated eggs seeks parental status of the resulting children and where legislation does not clearly resolve the matter, two tests for maternity have arisen. Some courts have focused on intent, holding that under such circumstances the intended “mother” is to be deemed the legal mother. See, e.g., Johnson v. Calvert, 851 P.2d 776 (Cal. 1993); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998); McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 1994). Other courts have instead focused on genetics and gestation, holding that genetic connection to the children is of paramount importance in determining legal maternity. See, e.g., Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133 (Mass. 2001); Belsito v. Clark, 644 N.E.2d 760 (Ohio Ct. Common
The intent test has developed primarily in California. In Johnson, a married couple was unable to have children naturally because the wife had undergone a hysterectomy, yet the wife could still produce eggs. 851 P.2d at 778. The couple entered into a surrogacy agreement with a third-party female who agreed to give birth to a child on their behalf in exchange for $10,000 and other consideration. One of the wife‘s eggs was fertilized with her husband‘s sperm and was successfully implanted in the surrogate‘s uterus. However, when the relationship between the couple and the surrogate deteriorated, litigation over maternity and custody ensued. Id. Under California‘s version of the Uniform Parentage Act, both genetic consanguinity and giving birth were equally cognizable bases for establishing maternity. Id. at 780–81. The Court declined to recognize two legal mothers. Id. at 781 n. 8. In order to break the tie, the California Supreme Court held that when gestation and genetic consanguinity “do not coincide in one woman, she who intended to procreate the child—that is, she who intended to bring about the birth of the child that she intended to raise as her own—is the natural mother under California law.” Id. at 782.8 The Johnson Court justified its holding in part by strongly affirming the validity of surrogacy contracts. Id. at 784.
The genetic test has been set forth most thoroughly by the Ohio Court of Common Pleas in Belsito. In Belsito, a married couple wanted children, and the wife could produce eggs but could not sustain a pregnancy. 644 N.E.2d at 760–61. By agreement, one of the wife‘s eggs was fertilized with the husband‘s sperm and then implanted in the uterus of a gestational surrogate (the wife‘s sister). Without objection from the surrogate, the couple sought a declaratory judgment of maternity and paternity. Id. at 761–62. Like California, Ohio had adopted a version of the Uniform Parentage Act which provided that “maternity can be established by identifying the natural mother through the birth process or by other means, including DNA blood tests,” as provided by statute. Id. at 763 (citing
Significantly, Tennessee‘s statutory framework for establishing maternity differs markedly from the California and Ohio statutes under consideration in Johnson and Belsito. Compare
Further, both the intent test and the genetic test suffer from inadequacies. For example, in Johnson the California Supreme Court crafted an unnecessarily broad rule which could afford maternal status even to a woman who failed to qualify under either of California‘s two statutory bases for maternity. See Johnson, 851 P.2d at 783. According to Belsito, the intent formulation of Johnson has “discarded both genetics and birth as the primary means of identifying the natural maternal parent,” Belsito, 644 N.E.2d at 764, and provides for, “in effect, a private adoption process that is readily subject to all the defects and pressures of such a process,” id. at 766. In Tennessee, unlicensed and unregulated adoption is statutorily prohibited and subject to criminal penalties. See
However, the genetic test of Belsito also has significantly broad implications. In the event that a dispute were to arise between an intended mother who had obtained eggs from a third-party donor and a gestational surrogate in whom the eggs had been implanted, the genetic test would implicitly invalidate any surrogacy agreement. The genetic test could also have practical effects similar to the “adoption-default model” criticized by In re Marriage of Buzzanca, see 72 Cal. Rptr. 2d at 289, in that an intended “mother” who employs techniques for assisted reproduction including egg donation would by default have to submit to government-controlled adoption procedures to attain a secure legal status as “mother.” Policy-wise, the requirement of such regulation may or may not be sound.
Consequently, we decline to adopt either the intent test or the genetic test as a general rule for resolving this case. We thus vacate the adoption of the intent test of Johnson by the courts below.
4. Factors for Establishing Legal Maternity
In light of the foregoing analysis, we deem it appropriate to decide this case on particularly narrow grounds. In Davis the primary issue hinged on the constitutional right to avoid procreation, see 842 S.W.2d at 601–02, but in the instant case the issue surrounds the maternity and custody of children who have already been born as the result of techniques for assisted reproduction and egg donation. Children, of course, are not property, and the State‘s interest in the welfare of children is eminently greater than the State‘s interest in controlling preembryos. The distinction between Davis and this case thus highlights the complexities involved in determining whether the affirmative attempt to procreate via technological assistance including egg or sperm donation is more closely analogous to procreative autonomy with its corresponding right of privacy or more closely analogous to a private form of adoption and thus more susceptible to governmental regulation in the interest of child welfare. Such a determination—which strikes at the very roots of current social values—is inherently policy-laden and both administratively and fiscally momentous, and its resolution on a broad scale is properly reserved for the legislature.
Therefore, in resolving this case we focus closely on its particular facts. Charles and Cindy,
I, Cindy (wife), understand that the child(ren) conceived by this method will not have my genetic material, but will have that of the oocyte [egg] donor and my husband [sic]. However, regardless of the outcome, I will be the mother of any child(ren) born to me as a result of egg donation and hereby accept all the legal responsibilities required of such a parent.
Cindy was impregnated and carried not just one but three fetuses to term. After a complicated pregnancy, she gave birth via caesarian section to triplets. Charles allowed Cindy to be named the “mother” on the children‘s birth certificates. After the children were born, Charles and Cindy lived together in an arrangement where both Charles and Cindy performed the role of parent.
Having recounted these events, we now discuss the relevant factors which we consider to be significant for deciding this case.
i. Genetics
Both statute and sound policy support genetics as an important factor in establishing legal maternity. Human reproduction as we now know it cannot take place without the involvement of genetic material. As analyzed above, Tennessee‘s domestic relations statutes provide for the establishment of legal maternity based on genetic consanguinity. See
However, our recognition in Davis of the constitutional right to control the disposition of one‘s genetic material does not mean that Davis stands for the proposition that genetics must be paramount in all parentage determinations. In cases such as this one, 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.
ii. Intent
Before the children‘s birth, both Cindy and the genetic father, Charles, voluntarily demonstrated the bona fide intent that Cindy would be the children‘s legal mother, and they agreed
Although our decision in Davis does not control this case, we agree with the Court of Appeals that it is nonetheless instructive. In Davis, this Court had to decide whether a man could prevent donation and implantation against his will of a preembryo (an early-stage fertilized egg) containing his genes. 842 S.W.2d at 589–90. We held that just as an individual enjoys a constitutionally-protected right to procreate, an individual also has a similar right to avoid procreation. Id. at 600–01. We concluded that disputes over the control of preembryos are to be resolved first by looking to the agreement of the progenitors and second, in the absence of agreement, by weighing the relative interests of the male and female providers of reproductive cells. Id. at 604. Davis thus underscored the importance of intent and agreement with respect to the disposition of an individual‘s reproductive and genetic material.
Although Tennessee‘s parentage statutes recognize maternity on the basis of genetics, see
Significantly, the artificial insemination statute of
iii. Gestation
Cindy became pregnant and gave birth to the children with the intent of raising them as her own. As mentioned above, historically gestation “proved genetic parentage beyond doubt” and thus was conclusive of maternity. See Roosevelt, 39 Santa Clara L. Rev. at 97; see also Malina Coleman, Gestation, Intent, and the Seed: Defining Motherhood in the Era of Assisted Human Reproduction, 17 Cardozo L. Rev. 497, 501 (1996) (“When the two functions of genetic contribution and gestation were inextricably bound, the issue of legal motherhood at birth was not disputable. The ancient maxim, mater est quam gestation demonstrat (by gestation the mother is demonstrated),
To be sure, as discussed above, genetics remains an irreplaceable component of human reproduction, and as such genetic consanguinity is and should be particularly important to parentage determinations. And as our analysis above has shown, Tennessee‘s domestic relations statutes expressly account for genetics in parentage determinations. See
However, as our analysis above has also shown, Tennessee‘s parentage and related statutes were simply not designed to control the circumstances of this case. To restrict legal maternity to genetic consanguinity alone where, as in this case, the genetic “mother” is an egg donor who has waived her parental rights and who has been and remains permanently anonymous would result in the absurdity of children having, for all practical purposes, no legal mother. A child‘s knowledge that he or she has an anonymous and inaccessible mother somewhere in the world would provide only cold comfort, and demanding such a result in cases like this one could hardly promote the best interests of children. “Courts must presume that the Legislature did not intend an absurdity and adopt, if possible, a reasonable construction which provides for a harmonious operation of the laws.” Fletcher, 951 S.W.2d at 382 (citing Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995) and Epstein v. State, 366 S.W.2d 914 (Tenn. 1963)).
We further observe that in this case the genetic “mother” has donated her eggs to another and has correspondingly waived her parental rights, thereby relinquishing her status as legal mother. As Belsito correctly concludes, “a genetic test cannot be the only basis for determining who will assume the status of legal parent.” 644 N.E.2d at 767.
Although giving birth is conspicuously absent from Tennessee‘s parentage statutes, as discussed above, there is no indication that the General Assembly sought to exclude it as a basis for legal maternity or even sought to decide questions of maternity at all. In this regard, the artificial insemination statute is once again significant. In addition to recognizing paternity where artificial insemination is involved,
Accordingly, we conclude that sound policy and common sense favor recognizing gestation as an important factor for establishing legal maternity. “Although current technology allows the separation between gestation and genetic contribution, it does not follow that gestation is now a less important part of parenthood.” Coleman, 17 Cardozo L. Rev. at 517. In our view, the dissent accords too little significance to gestation as a factor for deciding this controversy.
Another factor to consider in resolving this case is the nature of the controversy. Here we are not faced with a controversy between a birth “mother” and a genetic “mother” where the genetic and gestational roles have been separated and distributed among two women. In this case, the genetic “mother” has fully waived her parental rights and remains anonymous. Nor is this a case involving a dispute between a traditional or gestational surrogate and a genetically-unrelated intended “mother” who wishes to raise the child as her own. Rather, Cindy became pregnant and gave birth to triplets on her own behalf, and the sole dispute is between her and the genetic father, Charles. The other kinds of conflicts present different questions and ones which would be inappropriate for us to decide here. Instead, we limit our holding today to cases where there is no controversy between the gestator and the genetic “mother.”
5. Establishing Legal Maternity in This Case
Deciding this case narrowly based on its particular facts, we affirm on separate grounds the holding of the courts below that Cindy is the legal mother. Our holding that Cindy is the legal mother of C.K.G., C.A.G., and C.L.G. with all the legal rights and responsibilities of parenthood is based on the following factors. First, prior to the children‘s birth, both Cindy, the gestator, and Charles, the genetic father, voluntarily demonstrated the bona fide intent that Cindy would be the children‘s legal mother and agreed that Cindy would accept the legal responsibility as well as the legal rights of parenthood. Second, Cindy then became pregnant, carried to term, and gave birth to the three children as her own. Third, this case does not involve a controversy between a gestator and a female genetic progenitor where the genetic and gestative roles have been separated and distributed among two women, nor does this case involve a controversy between a traditional or gestational surrogate and a genetically-unrelated intended mother; our holding today is not designed to control such controversies. Even though Cindy lacks genetic connection to the triplets, in light of all the factors considered we determine that Cindy is the children‘s legal mother. We further conclude that in light of the factors considered, Charles‘s genetic paternity does not give him a parental status superior to that of Cindy.
Having thus concluded that Cindy is the children‘s legal mother, the question of estoppel is moot, and we vacate the holding of the Court of Appeals that Charles is estopped to deny Cindy‘s maternal status.
6. The Need for Legislative Action
Given the far-reaching, profoundly complex, and competing public policy considerations necessarily implicated by the present controversy, we conclude that crafting a general rule to adjudicate all controversies so implicated is more appropriately accomplished by the Tennessee
B. Custody and Child Support
Having determined that Cindy is the children‘s legal mother, we now review the juvenile court‘s decisions concerning comparative fitness, custody, visitation, and child support, which the Court of Appeals affirmed. Our standard of review in child custody cases is de novo upon the record of the trial court with a presumption of correctness, unless the evidence preponderates otherwise. See
The paramount consideration in child custody cases is the child‘s best interests.
- (1) The love, affection and emotional ties existing between the parents and child;
- (2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
- (3) The importance of continuity in the child‘s life and the length of time the child has lived in a stable, satisfactory environment . . .;
- (4) The stability of the family unit of the parents;
- (5) The mental and physical health of the parents;
- (6) The home, school and community record of the child;
- (9) The character and behavior of any other person who resides in or frequents the home of a parent and such person‘s interactions with the child; and
(10) Each parent‘s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.
The juvenile court concluded that in light of all the circumstances, Charles and Cindy were both good and caring parents. Based upon their “comparative fitness . . . as that affects the best interests of the minor children,” the court awarded joint custody with Cindy designated as the primary custodial parent. The court further ordered certain visitation rights in favor of Charles and required him to continue to pay Cindy child support in the amount of $3,000 per month. Having carefully reviewed the record, we see no reason to alter the juvenile court‘s determinations in this regard. Therefore, concerning these matters we affirm the judgments of the courts below.
III. Conclusion
We conclude that Tennessee‘s parentage statutes neither provide for nor contemplate the circumstances of this case, where an unmarried couple has employed techniques for assisted reproduction involving third-party egg donation to produce children for their own benefit and where dispute has arisen over the genetically unrelated gestator‘s legal status as mother. Although in some jurisdictions courts have fashioned widely applicable tests for maternity where techniques for assisted reproduction are involved, we decline to adopt as a general rule either the intent test or the genetic test. Consequently, we vacate the adoption of the intent test by the courts below.
Instead we affirm on separate and narrower grounds the holding of the courts below that Cindy is the legal mother of the children C.K.G., C.A.G., and C.L.G. with all the rights and responsibilities of parenthood. Our holding in this regard depends on the following factors: (1) prior to the children‘s birth, both Cindy as gestator and Charles as the genetic father voluntarily demonstrated the bona fide intent that Cindy would be the children‘s legal mother and agreed that she would accept the legal responsibility as well as the legal rights of parenthood; (2) Cindy became pregnant, carried to term, and gave birth to the children as her own; and (3) this case does not involve a controversy between a gestator and a female genetic progenitor where the genetic and gestative roles have been separated and distributed among two women, nor does this case involve a controversy between a traditional or gestational surrogate and a genetically-unrelated intended mother. In our view, given the far-reaching, profoundly complex, and competing public policy considerations necessarily implicated by the present controversy, crafting a broadly applicable rule for the establishment of maternity where techniques for assisted human reproduction are involved is more appropriately addressed by the Tennessee General Assembly.
Having concluded that Cindy is the children‘s legal mother, the question of estoppel is moot, and we vacate the holding of the Court of Appeals that Charles is estopped to deny Cindy‘s maternal status. However, we affirm in full the judgments of the juvenile court and Court of Appeals
FRANK F. DROWOTA, III, CHIEF JUSTICE