Let us say you are part of a childless couple and went through a surrogate in order to grow your family. You and your fiancée spend about $73,000 to ensure the safety and health of the child and the surrogate. The baby is born, and the birth mother decides she wants custody after all. The juvenile court agrees with you, the Court of Appeals agrees with you – and then Tennessee Supreme Court steps in and sides with the birth mother. What do you do?

There’s an Italian couple facing this very dilemma right now. In 2012, a Tennessee surrogate decided she wanted custodial rights to her child, and the Supreme Court recently ruled in her favor. The court said that the parental rights of a surrogate cannot be terminated before the birth of the baby, and unless there is proof that the birth mother would be a detriment to the child’s welfare, there’s nothing to prohibit the court from granting custody and/or visitation.

Because the father has established paternity – the couple and the surrogate used artificial insemination – “the [Supreme C]ourt upheld the juvenile court’s granting of custody of the child to the father because it established paternity, but it remanded the case to the juvenile court to decide the surrogate’s visitation rights and child support,” according to the Courthouse News Service. Where the child will eventually live, or what kind of parenting plan will be put into place, has yet to be determined.

Why did this happen?

This is a very delicate situation for both the birth mother and the Italian couple, and chances are neither party will end up happy. However, the laws governing surrogacy in Tennessee are nebulous at best. The only guidelines regarding surrogates in the Tennessee Annotated Code fall under the realm of adoption, and mostly define the act (see Section C):

§36-1-102 (48) (A) “Surrogate birth” means:

(i) The 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;

(ii) The 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;

(B) No surrender pursuant to this part is necessary to terminate any parental rights of the woman who carried the child to term under the circumstances described in this subdivision (48) and no adoption of the child by the biological parent(s) is necessary;

(C) Nothing in this subdivision (48) shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly. (Emphasis ours)

Though it looks, at first glance, as though the Supreme Court should have sided with the Italian couple, these statutes would only apply after the birth of the child, not before it. Thus, the birth mother maintains some claim to visitation under Tennessee law.

Child custody issues are incredibly complex. For more information, please contact Miller Upshaw Family Law, PLLC.