I’ve been thinking a bit more about the recent Tennessee case that was the subject of my last post. I discussed the facts in the earlier post but will run through some of them again quickly here. The Tennessee events giving rise to the case, informatively entitled “In Re Baby,” began when Jennifer E. agreed to serve as a surrogate to Luca G. and Antonella T. Pursuant to the agreement, Jennifer was artificially inseminated using Luca’s sperm.
Shortly before the resulting child was born Jennifer, Luca, Antonella and Jennifer’s husband, Joshua, jointly petitioned the court to establish parentage. The hope was to ensure some sort of legal clarity before the birth of the child. The court declared that Luca was the child’s legal father and also determined that any rights Jennifer might have theoretically had were forever terminated.
After the child was born Jennifer, who had apparently changed her mind, sought to prevent Luca and Antonella from taking the child with them. (They were Italian and wanted to return home.) She lost in both the trial court and the appellate court.
I’m not going to offer any kind of detailed analysis of Tennessee law. It’s really way beyond my expertise. From here on in what I have to say is general.
Jennifer is a woman who gave birth to a child and was genetically related to the child. Ordinarily there would be no question that such a person would be a legal mother. As such, if she and the legal father had a disagreement about where the child would live, a court would think of it as a custody case–as dispute between two legal parents. The court would decide the case according to the best interests of the child.
But this is not at all what happened. Luca was declared to be the sole parent of the child. So what happened to Jennifer’s rights?
There are, it seems to me, two main possibilities (though there are some shadings in between, as will become clear.) First, you could say that under these circumstances (whatever we decide counts as “the circumstances”) Jennifer never had any parental rights. Alternatively, you could say that she had some sort of parental rights but that they were extinguished in the December hearing.
I think the court sort of waved in second direction with the language quoted above, but because it referred to rights Jennifer might “theoretically” claim you cannot really tell whether it though there were rights. You could view the court as effectively saying “we don’t know what you had but whatever you had, it is now gone.”
Does it matter whether Jennifer loses because 1) she never had parental rights or 2) she had them but they were extinguished? I imagine to her (and to the rest of the people actually involved here) it does not matter. She loses and that’s what counts. But to me and to anyone else thinking about this problem broadly, I think it ought to matter. It matters because the legal analysis in each case would be somewhat different and might have different implications for other cases down the road.
I want to think about each possibility in turn. (I may not have space to do both in this post.) I’ll start with 1–What would it mean for the law if the rule is that Jennifer never acquired parental rights?
As I said, generally if a woman is pregnant and gives birth to a child she is genetically related to she is a legal parent. Most states have laws that define a woman who gives birth as the child’s mother. But of course, these laws were typically written long before it was possible for a woman to give birth to a child she was not genetically related to. (It’s IVF that makes that possible.)
In the post-IVF world, there are cases where the woman who is genetically related prevails over claims of the woman who gives birth. Some of those are gestational surrogacy cases and some of those are cases of women using donor eggs. Those situations look the same and what determines whether the woman giving birth to a genetically unrelated child is essentially intent. Did she intend to be a mother or to be a surrogate?
Since Jennifer was a surrogate I will consider that branch of cases. Probably the most famous gestational surrogacy case (one discussed here before) is Johnson vs. Calvert. Johnson tells us that as between the woman who gives birth and the woman who is genetically related, the latter wins–because (and this is from memory) this is in line with the intent of the parties.
But this case isn’t that situation. Jennifer is both the genetic mother and the woman who gives birth and she isn’t being compared to any other candidate for legal mother. Indeed, there is no other candidate for the role and the court does not assign the role to anyone else. This isn’t a case where someone else has a superior claim.
The point to appreciate here, I think, is that this means there is some different rule at work–not the Johnson vs. Calvert rule. And it seems to me that the rule must be something like intent not to be a mother negates claims to legal motherhood based on genetics plus giving birth–or it least it can negate those claims. There are, in fact, specific circumstances present here that are probably important. I need to think about those but this is long enough so here I will stop for now.