Would A Tennessee Bill Make Children Conceived Via Artificial Insemination 'Illegitimate'?

NASHVILLE, TN — A Tennessee state representative is defending a bill she's sponsoring which critics have said would make children conceived via artificial insemination illegitimate in the eyes of the law. Rep. Terri Lynn Weaver, a Republican of Lancaster, says she's simply revoking a statute the state attorney general says is unconstitutional, though in the brief she cites, the AG actually argues the opposite.

Weaver's HB1406 is, on its face, a very simple bill: just two lines, revoking Tennessee Code Annotated 68-3-306, effective July 1. That law, part of the Vital Records Act of 1977, says, "A child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife."

In a Facebook post defending the bill, Weaver said that the bill simply removes a law that is unconstitutional and conflicts with another law (for updates on the General Assembly and other local news that affects you, find and subscribe to your local Middle Tennessee Patch).

"A couple of months ago, the state's Attorney General filed a brief in a lawsuit related to this statute TCA 68-3-306 in which he said that the law, as written and enacted, was unconstitutional. It is not unusual for the legislature to repeal a law that is unconstitutional," she wrote. "Thankfully there is another statute TCA 36-2-304 still on the books that makes it clear that when a child is born to a married woman, the child is presumed to be that of her husband. So, the repeal of the law does not de-legitimize a child conceived by insemination."

She goes on to say that the bill "does not apply to same sex marriages at all!!!!"

Weaver is correct in saying that TCA 36-2-304 does in fact show that the state presumes the father of a child is a married woman's husband, however, she is in error in her reference to State Attorney General Herbert Slatery's brief, filed in connection to a divorce case between two married women and the custody of the child born via artificial insemination. Coincidentally, Weaver was one of 53 state legislators who signed on to a motion to intervene in that case, in which they argued the judge's original decision — that the presumption of parentage in custody situations applied only to husbands — was correct.

Slatery filed a memorandum of law in the case which, actually, argues the statute Weaver's bill seeks to repeal is constitutional. The memorandum notes that in the United States Supreme Court case Obergefell v. Hodges, the court ruled that state laws are "invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples," which would seemingly make the law unconstitutional, because it treats the male spouses of women different from female spouses. But the brief goes on to say another portion of state code requires words in the masculine gender include their feminine or neuter counterparts, except when "the contrary intention is manifest." The AG's brief notes that the purpose of the law Weaver seeks to repeal is to legitimize children born via artificial insemination and that replacing "husband" and "wife" with "spouse" does nothing to change that intent.

"The legislature's use of the words 'husband' and 'wife' merely reflects the fact that only opposite-sex marriages were recognized in Tennessee when the statute was enacted in 1977," it continues, concluding that the law should be held as constitutional, that the judge's ruling was counter to the law and that the spouses of women who give birth via artificial insemination — be it a husband or wife — be presumed as a parent. In fact, under the reading of the Obergefell decision proffered by Slatery in the brief, nearly all references to "husband" and "wife" in Tennessee law should be construed to read "spouse," thus making Weaver's assertion that her bill "does not apply to same sex marriages at all!!!!" erroneous.

Chris Sanders of the Tennessee Equality Project told The Tennessean the bill is "discriminatory" and would in fact harm same-sex couples — since, as Slatery's brief argues, they are covered under the existing statute.

"This will hit real families, affect their relationships and hurt the state's economy," he said.

The bill, which is sponsored in the Senate by Sen. Joey Hensley, has passed the perfunctory first readings in both houses.

Image via State of Tennessee