Session March 10, 2015.
Bede O. M. Anyanwu, Jackson, Tennessee, for the appellants, B.O.A., A.D.J.A., C.S.B. and T.B.
Herbert H. Slatery, III, Attorney General and Reporter, Andree S. Blumstein, Solicitor General, and Sara E. Sedwick, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Health.
Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, J. and Kenny Armstrong, J., joined.
BRANDON O. GIBSON, JUDGE.
I. Facts & Procedural History
Mr. and Mrs. A entered into a surrogacy contract with C.S.B. (hereinafter "C.B.") and her husband T.B., whereby C.B. would serve as the gestational carrier of a child or children for Mr. and Mrs. A. Donated eggs were fertilized with Mr. A's sperm, and the resulting embryos were implanted in C.B.'s womb. The procedure was successful, and C.B. gave birth to twin boys on April 2, 2014.
On April 3, 2014, Mr. and Mrs. A filed a joint petition along with C.B. and T.B. in the Juvenile Court of Madison County. The petition was styled, "Petition to Establish Parentage and Custody, to Ratify Gestational Carrier Agreement and for Declaratory Judgment." The petition was brought pursuant to Tennessee Code Annotated section 36-2-301, et seq., which, by its terms, provides "a single cause of action to establish parentage of children other than establishment by adoption . . . or by acknowledgement of parentage, " and pursuant to Tennessee's Declaratory Judgment Act, Tennessee Code Annotated section 29-14-101, et seq. The joint petition stated that Mr. A was the "intended and genetic father" of the children and that Mrs. A was the "intended mother." It also stated that C.B. was the gestational carrier of the children but not a biological parent or genetic donor. According to the petition, the egg donor for the procedure had no legal right to the egg and no right to act as a parent to any child born of the procedure. The parties attached to the joint petition the gestational carrier agreement they executed in connection with the procedure. The parties' joint petition asked the court to declare Mr. and Mrs. A as "the legal parents of the child[ren] at birth and vest in them all rights and responsibilities of parenthood under the Laws of Tennessee, " including the right to make medical decisions for the children and the right to have their names entered on the children's birth certificates as their parents. According to the petition, C.B. and T.B. joined the petition in order to give their consent for legal parentage to be established in Mr. and Mrs. A. To that end, C.B. and T.B. requested that their legal rights to the children, if any, be terminated. In sum, the joint petition asked the court to declare Mr. and Mrs. A as the sole legal parents of the children, to declare that C.B. and T.B. were not the children's parents, and to enter an order requiring the Tennessee Department of Health (hereinafter "Department") to issue birth certificates for the children reflecting Mr. and Mrs. A as the children's parents.
That same day, a general sessions judge sitting by interchange entered an ex parte order granting the relief sought in the joint petition. The order, which appears to have been prepared by the petitioners' counsel, declared the parentage of the children pursuant to Tennessee Code Annotated section 36-2-301, et seq. It provided that Mr. and Mrs. A had "the sole right to physical and legal custody of the children pursuant to the Agreement, the parties' intent, and by Order of this Court." The order stated that C.B. was not the biological mother and "not the mother of the children pursuant to any definition found in statute or law." The order further stated that C.B. and T.B. waived any legal rights and responsibilities they could have had with regard to the children, and therefore, their rights, "if they had any, " were "forever terminated." Mr. and Mrs. A were declared the sole legal parents of the children, and the court ordered the Department of Health to issue original birth certificates reflecting Mr. and Mrs. A as the sole legal father and mother of the children immediately upon birth.
On May 6, 2014, the Tennessee Department of Health filed a motion to intervene and to alter or amend or set aside "pertinent portions" of the court's order. Specifically, the Department asked the court to set aside those portions of the order finding that Mrs. A, the "non-genetic, non-gestational intended mother, " was the legal mother of the children and entitled to have her name listed on the original birth certificates. Because Mrs. A had no biological or gestational relationship with the children, the Department claimed that placing her name on the children's birth certificates was contrary to state law. As support for this assertion, the Department cited the definition of "live birth" listed in Tennessee Code Annotated section 68-3-102(10) of the Vital Records Act, which refers to a product of human conception being extracted "from its mother." Thus, the Department claimed that it was appropriate to list the woman who gave birth, C.B., on the birth certificates, along with the children's biological father, Mr. A. The Department asserted that it would list a non-biological and non-gestational intended mother, such as Mrs. A, only on certificates of birth by adoption if the Department received the necessary paperwork following an adoption proceeding.
The joint petitioners filed a motion to quash the motion filed by the Department of Health. After a hearing, the juvenile court judge entered an order granting the Department's motion to intervene and to alter or amend or set aside the previous order. The court found that the previous order directing the Department to list Mrs. A as the children's mother on the birth certificates would violate the Vital Records Act, noting the aforementioned definition of "live birth." Accordingly, the court concluded that the woman who gave birth to the children must be listed as the mother on the original birth certificates. The court also found that a nonbiological parent must adopt in order to obtain parental rights, citing Tennessee Code Annotated section 36-1-102(48), which governs certain types of surrogacy arrangements. Consequently, the court also vacated those portions of its previous order that purported to vest parental rights in Mrs. A. The joint petitioners timely filed a notice of appeal to this Court.
II. Issues Presented
Mr. and Mrs. A, C.B., and T.B. present the following issues for review on appeal:
1. Whether the juvenile court erred in vacating portions of its prior order granting Mrs. A legal rights as parent of the children born as a result of the gestational carrier agreement;
2. Whether the terms of the gestational contract agreement must be followed;
3. Whether equal protection requires that Mrs. A have the same right to be recognized as the legal parent of her child conceived by a donated egg as her husband would have if he had ...