The recent Compher v. Whitfield of the Tennessee Court of Appeals is a prime example of how far child custody in Tennessee has to go to keep up with today’s reality of same-sex partners. In Compher, two women lived in a same-sex domestic partnership. Around 2009/2010 the parties decided to have a child together. The parties determined that Ms. Whitfield would carry the child to term and they would use anonymous, donated sperm to father the child. The parties agreed that regardless of their different biological connections to the child, they would be equal parents.
After the child was born, the parties became equal parents, and both endured “Emory” as their child. However, the parties subsequently separated and a lawsuit ensued.
In 2020, Ms. Compher filed a petition to establish parentage by and for Emory. Ms. Compher sought recognition as Emory’s legal mother under Tennessee law. Alternatively, she attempted to be recognized as Emory’s de facto parent, as the child was conceived through assisted reproduction and raised by the parties in a committed relationship where the parties shared parenting equally and the child appeared as the child of both of them them.
Ms. Compher attempted to apply Tennessee law in relation to parents using certain types of insemination to conceive in order to support her parental rights. Ms. Compher alternatively attempted to apply the Tennessee statute, which grants a “father” parental rights as a child if the unmarried parties separate.
Ms. Whitfield took the position that since Ms. Compher had no biological connection to Emory, she had no parental rights to Emory. Ms Whitfield therefore sought to have Ms Compher’s lawsuit dismissed in its entirety and have sole custody of Emory.
Tennessee law allows the non-biological/giving parent – traditionally the father – certain rights over a couple’s child if the child is conceived from another’s sperm through certain types of insemination. However, the law uses obsolete parental language, e.g. B. Identifying the non-born spouse as “father”.
The court rejected the argument analogizing the “father’s” rights to raising a child when the unmarried couple separates. The court specifically stated that under Tennessee law, the “presumption of parentage statute is merely a procedure by which the father is able to establish parenthood. . . .” Because Ms. Compher was not the “father,” the court ruled that the law granting rights in their child to unborn spouses gave Ms. Compher no rights. Accordingly, this statute did not give Ms. Compher legal standing to bring a claim.
As an additional argument, Ms. Compher took the position that she was a de facto parent. Ms. Compher contended that even if the court found that the Parenthood Act presumption did not apply to her, she “should still be declared a legal parent or a de facto parent based on Tennessee common law and fundamental principles of justice.”
The court rejected this argument in its entirety. The court stated, “We again refuse to accept the concept of de facto parentage and conclude that Ms. Compher was not entitled to pursue this lawsuit under that concept.”
Ms. Compher tried a third angle. She used the In Vitro Fertilization Act and advanced a constitutional argument that it made improper distinctions based on sex/gender and the type of assisted reproduction used to produce a child. Ms Compher argued that there was “no functional difference between a child conceived by embryo transfer and a child conceived by artificial insemination”. In essence, she stated that this was a no-nonsense distinction when it came to descent, and she should be considered Emory’s parent under the law, with the parental rights that come with it.
The court also rejected this argument in its entirety. The court found that Ms. Compher was not Emory’s biological parent and that the In Vitro Fertilization Act applies only to married persons and is based on contract principles, which was not the case in her case. The court concluded: “The law on artificial insemination is based on marriage. . . .” Since Ms. Compher and Ms. Whitfield were not married, the court found that this was not the case.
Ms. Compher didn’t have any rights to Emory, after all, despite being a parent to Emory for almost a decade — and for Emory’s entire life. The court’s conclusion seems to defy common sense and, quite frankly, legal and parental reality. One can only imagine how devastating the loss of Ms. Compher as a parent is to Emory, along with the devastating devastation that the loss of a child must be to Ms. Compher.
The bottom line, however, is that as of this writing in Tennessee, same-sex couples in domestic partnerships should strongly consider marriage before attempting any type of fetal insemination procedure for either parent. Being a life partner, agreeing to co-parenting a child, and even raising a child as that child’s parent from the moment of birth may not be enough. Failure to understand this important distinction between married and civil partners in Tennessee can result in a parent with no biological relationship to a child born of a civil partnership having no rights to that child if separate the parties. even if he/she was the parent for the child’s entire life. Also, in Tennessee, it seems unsafe to assume that a same-sex parent with no biological relationship to the child has any rights over their child under certain circumstances.
The Opinion leaves unanswered the question of how a parental relationship with a child of a non-biological parent can be established in a domestic relationship resulting from a same-sex partnership that is not marriage. One wonders whether the law would accept a contractual agreement between the two parties that would confirm parental status to the non-biological parent. The Tennessee Courts of Appeals have left us to guess. It is possible that either the Tennessee Supreme Court or the Tennessee Legislature will step in and fix what, as of this writing, can be so devastating.