Throughout the nation, a state’s position on surrogacy is crystal clear, whereas in others, it can be utterly obscure. Surrogacy is governed at the state level which ultimately means each state has its own constituents and tolerance levels regarding laws they can enact. This is why each and every state’s laws and legislations differ with surrogacy.
A recent article in USA TODAY by reporter Anita Wadhwani wrote a great piece titled, “Vague surrogacy laws can lead to heartache.” This article surrounds the issues occurring in Tennessee. When reviewing Tennessee surrogacy legislation, legal experts are claiming that this state is crawling behind not only in surrogacy laws, but also in fertility and reproductive technologies.
The story goes on to highlight a former Tennessee surrogate mother, who carried a baby for an Italian couple a few years ago, had a change of heart and decided she wanted the baby.
“After years of legal wrangling, the state Supreme Court earlier this month ruled partially in her favor, sending the case back to a Nashville juvenile judge to decide on custody of the girl,” writes Wadhwani. She continues, “The girl is now 3, lives in Italy, speaks no English and has been raised since infancy by the Italian couple after the surrogate’s legal fight to keep her was dismissed by lower courts.”
Wadhwani goes on to write that this is a wrenching custody battle that surrogacy law experts say might have been avoided if Tennessee laws didn’t lag woefully behind.
“Tennessee’s surrogacy law ‘lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements,’” the Supreme Court noted in its opinion. “That leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of law.”
These blurred legal lines have created much sorrow for the parties involved.
Benjamin Papa, the attorney representing the Italian couple told the reporter, “Certainly, it’s complicated to try at this point to establish a visitation schedule if you have a child who doesn’t speak English, has never met the surrogate but does have a biological mother whose rights have never been terminated.”
Papa’s statement is both excellent and jaw-dropping.
If the biological mother’s rights have never been terminated, which is stunning, considering she’s been living with her parents for three years and if the surrogate obtains visitation, she will be a virtual stranger to this little girl.
I’m mystified by this. Yet, because the laws are so vague, I’m not stunned by this mess.
“The battle has been very hard,” Papa said. “They went through the whole surrogacy process in good faith. From their perspective, the surrogate decided she wasn’t going to live up to the bargain at the last minute. They have been very frustrated with her trying to back out of the deal everyone agreed to.”
And it appears that this case isn’t the only one floating around in the courthouse.
Wadhwani reports, “In one Rutherford County case, the surrogacy arrangement went smoothly. There was no conflict between the surrogate and the intended parents. And then the Tennessee Department of Health intervened.” The reporter pushes forward, “The surrogate was implanted with an anonymously donated egg fertilized by the intended father’s sperm. When the couple went to court to establish parentage, just before the birth of their child, state attorneys argued against them, saying that the surrogate must be listed as the child’s mother on the birth certificate.”
The end decision was that the court ruled with state health officials.
Diane Hinson, a Fellow of the American Association of Assisted Reproductive Attorneys shared her point of view regarding this article.
To date, Tennessee remains one of four states which mandat an “intended mother” using an egg donor to become a legal parent after the baby is born.
This adoption process also impacts the surrogate. Hinson said the surrogate, “is on the hook as the legal parent until that adoption proceeding is completed.”
Julia Tate, a lawyer involved in the Rutherford County trial, told reporters she plans to appeal this Court of Appeals ruling.
“There are women using donated eggs every day in Tennessee,” Tate said. “All these surrogates — they don’t want to be named as the mother of the child. All the intended parents want is to be named as the parents. We’re out of step with the nation. Our department of health is out of step with the nation.”
Tate also pointed out that because of this “stepparent adoption process,” the new parents have been unable to receive a Social Security card for their baby and cannot add them to their health insurance plan.
After all the expenses of the surrogacy process, more finances are added on to the tab with the adoption proceedings.
Let’s hope that all this can be rectified in the Tennessee courts so these parents are treated with the dignity they deserve. They have endured and sacrificed so much to have a baby.