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Tennessee recognises lesbian woman as 'husband' in sperm donor baby dispute

15 May 2017
Appeared in BioNews 900

A judge in Knox County, Tennessee, has granted a divorced woman the same legal rights as a husband over a child conceived through donor insemination.

Erica and Sabrina Witt married in Washington DC in 2014 and conceived a child through donor insemination. Sabrina Witt gave birth to a girl in January 2015 and the couple raised the child together until their initial divorce hearing in February 2016. Erica Witt was not recorded on the child's birth certificate because at that time, Tennessee did not recognise same-sex marriages. In June 2015 the United States Supreme Court ruled that same-sex marriage was legal, giving gay couples the same rights as heterosexual couples.

In court, Sabrina Witt's attorney argued that Erica Witt did not qualify for parental rights. In divorce cases, Tennessee law gives a husband parental rights where children have been conceived as a result of donor insemination. Initially, the judge Greg McMillan agreed with this interpretation but following an intervention from the Tennessee Attorney-General's Office, McMillan ruled that Erica Witt did have parental rights.

Senior Counsel from the A-G Office advised McMillan to view the terms 'husband' and 'wife' in a gender-neutral way, so that he did not violate constitutional law. In March McMillan ruled '... The court finds that that is the correct frame of reference that the court should use in looking at this issue based on the duty of this court to preserve the statute's constitutionality if it can be read in a neutral fashion…'

Conservative legislators unsuccessfully tried to file a motion during the divorce proceedings to limit the application of child custody law to heterosexual couples. Since the case, Tennessee legislators have passed Senate Bill 1085 which states that 'undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest.' In future divorce rulings, this would mean that same-sex individuals who are not biologically related to the child will not have recognised child custody rights.

Four lesbian couples, who are currently expecting children through donor insemination are challenging the law as unconstitutional as it contradicts the ruling of the Supreme Court in Obergefell v. Hodges, which intended to create equal marriage rights for gay couples. They argue that Senate Bill 1085 removes statutory protection for custody rights for their unborn children by limiting protection to heterosexual couples.

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