State Laws and Legislation

Tennessee Surrogacy Law

Summary: Tennessee law appears to give surrogacy agreements legal consequence, but the law claims neither to approve nor forbid these agreements. It seems unlikely that the law will look favorably on a surrogacy agreement involving lesbian, gay, bisexual or transgender (LGBT) individuals because “surrogate birth” is defined by statute to occur only when the surrogate is gestating a fetus for a married couple.

Explanation: The Tennessee Code defines “surrogate birth” as one of two arrangements: (1) “[t]he union of the wife's egg and the husband's sperm, which are then placed in another woman, who carries the fetus to term and who, pursuant to a contract, then relinquishes all parental rights to the child to the biological parents pursuant to the terms of the contract;” (emphasis added) or (2) “[t]he insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father's wife to parent” (emphasis added). The law also states that under these agreements, no adoption formal by the biological parents is necessary. However, the Code also says that the aforementioned language “shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly.”

In 1992, the Tennessee Supreme Court held that “in disputes as to embryos, any prior agreement would be honored.” This decision did not specifically address surrogacy, but the Court’s willingness to adjudicate a case involving embryos intended for surrogacy suggests that the judiciary approves of such contracts in Tennessee.

There is no explicit prohibition in Tennessee on LGBT couples jointly adopting a child, nor is there an explicit prohibition on LGBT individuals from adopting a child of their same-sex partner.

Citations: TENN. CODE ANN. § 36-1-102(48) (2009); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

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Last Updated: 9/10/2009  

Updated: Wed, September 09, 2009 - 11:00:50