Case Law Development: Child Custody Dispute Between Cohabitants Results in Gestational Mother Being Given Custody Rights Even Though She has No Genetic Connection to the Children

In a groundbreaking and controversial 4-1 decision, the  Supreme Court of Tennessee granted custody of triplets to their gestational mother as against the children's genetic father.  The couple had lived together and intended to raise the children together.  Father's sperm was used to fertilize donated eggs for his partner.  Because Mother had no genetic connection to the children, Father argued that she should have no right to custody of the children. 

The majority opinion filed Wednesday and written by now-retired Chief Justice Frank F. Drowota, III, upheld the lower court decisions that awarded joint custody to the parents, with the mother as primary custodian, providing for visitation for the father and ordering him to pay child support.  The Supreme Court decision was based, in part, on the triplets’ unmarried parents’ “demonstrated” intent prior to and during the pregnancy that the woman who bore them would be the mother. In addition, the majority concluded that “sound policy and common sense favor recognizing gestation as an important factor for establishing legal maternity.”

In a separate dissenting opinion, Justice Adolpho A. Birch, Jr., said the majority “reached beyond existing law to produce a palatable result....Unless our legislature acts, I fear that this narrowly tailored solution designed for this specific case will be used as precedent for other cases involving reproductive technolgy,”

In Re C.K.G., 2005 Tenn. LEXIS 812 (October 6, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/054/CKGOpn.pdf (last visited October 9, 2005 bgf)

Read the article in The Tennessean, quoting Professor Susan Brooks of Vanderbilt regarding the importance of the case.

Read the Tennessee Courts’ Press Release on the decision.