Cedra Deanntre Potts (Taylor) v. Starr Anastasia Potts

06/02/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 5, 2021 Session
CEDRA DEANNTRE POTTS (TAYLOR) V. STARR ANASTASIA POTTS
Appeal from the Circuit Court for Davidson County
No. 17D1366 Phillip Robinson, Judge
No. M2020-00170-COA-R3-CV
This appeal arises from the denial of the plaintiff’s Tenn. R. Civ. P. 60.02 motion
requesting relief from an agreed-upon permanent parenting plan that was approved by the
court and incorporated into the final divorce decree. The plaintiff contended that the
defendant spouse lacked standing to seek custody and visitation of the minor children, who
were conceived by in vitro fertilization;1 therefore, the permanent parenting plan was void
for lack of subject matter jurisdiction, i.e., standing was jurisdictional. The material facts
are that the couple entered into a contract with a reproductive clinic in October 2013 to
perform an in vitro fertilization procedure, with each party signing the contract as
“Prospective Parent.” The reproductive clinic impregnated the plaintiff with embryos
created from the plaintiff’s eggs and donated sperm. As a result of the procedure, the
plaintiff gave birth to twins in July 2014. The parties, a same-sex couple, married in June
2015, shortly following the United States Supreme Court’s decision in Obergefell v.
Hodges, 576 U.S. 644 (2015). In August 2017, the plaintiff filed for divorce, contending
there were no children born of the marriage, and the defendant filed an answer and a
counter-complaint alleging there were two children born of the marriage and requesting
that the court designate her as the primary residential parent. After the parties resolved all
issues, the trial court entered a final divorce decree, incorporating an agreed-upon
permanent parenting plan that (1) stated the children were a product of the parties’
marriage, (2) designated the plaintiff as the primary residential parent with 240 days of
parenting time per year and designated the defendant as the alternate residential parent with
125 days of parenting time, (3) provided for joint decision-making authority, and (4)
1
Merriam-Webster’s Dictionary defines “in vitro fertilization” as “fertilization by mixing sperm
with eggs surgically removed from an ovary followed by uterine implantation of one or more of the resulting
fertilized eggs.” “In vitro fertilization.” Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/in%20vitro%20fertilization (last visited May 28, 2021). The
applicable statutes—Tenn. Code Ann. §§ 36-2-401 to -403—primarily use the term “embryo transfer,”
which is defined as “the medical procedure of physically placing an embryo in the uterus of a female
recipient intended parent.” Tenn. Code Ann. § 36-2-402(4). The terms “in vitro fertilization” and “embryo
transfer” are used interchangeably throughout this opinion.
ordered the defendant to pay child support. Three months after the divorce decree became
a final judgment, the plaintiff filed the Rule 60.02 motion at issue in this appeal. Following
briefing and a hearing, the trial court determined that the defendant was able to establish
parentage under Tenn. Code Ann. § 36-2-403 because she met the requirements of the
statute, in that she was a party to the written contract consenting to the in vitro fertilization
procedure, and she accepted full legal rights and responsibilities for the embryos and any
children that resulted. The trial court also determined that the defendant was entitled to the
presumption that she was the children’s parent in accordance with § 36-2-304(a)(4)
because the defendant held the children out as her natural children. For these and other
reasons, the trial court denied the plaintiff’s Rule 60.02 motion for relief. This appeal
followed. Because the custody and visitation statutes specifically provide that only a parent
has standing to seek custody and visitation in a divorce action, “the issue of standing is
interwoven with that of subject matter jurisdiction and becomes a jurisdictional
prerequisite.” Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004). Therefore, the
defendant must fit the statutory definition of “parent” for the court to have jurisdiction to
grant visitation. Tennessee Code Annotated § 36-2-403 provides the single means of
establishing the parentage of children born as a result of the in vitro fertilization procedure.
See Tenn. Code Ann. § 36-2-401. Contrary to the plaintiff’s contention that all of the
gametes (both the sperm and the egg) must be donated for § 36-2-403 to apply, we read the
statute as addressing situations such as this one, where only half of the gametes are donated,
as well as situations where all of the gametes are donated. Because the defendant
contractually agreed to accept full legal rights and responsibilities for the embryos and any
children produced as a result, the defendant is presumed to be the children’s parent under
§ 36-2-403(d); therefore, the defendant had standing to seek custody and visitation in the
underlying divorce action. Accordingly, the trial court had subject matter jurisdiction over
the controversy. For these reasons, we affirm the trial court’s decision to deny the
plaintiff’s Rule 60.02 motion for relief from the judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT, J. and J. STEVEN STAFFORD, P.J., W.S., joined.
Lorraine Wade, Nashville, Tennessee, for the appellant, Cedra Deanntre Potts (Taylor).
Starr Anastasia Potts, Nashville, Tennessee, pro se.
OPINION
Prior to the legal recognition of same-sex marriage, Cedra Deanntre Potts (Taylor)
(“Plaintiff”) and Starr Anastasia Potts (“Defendant”) participated in two civil union
ceremonies, one in January 2008 and the other in September 2013. Shortly following their
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second ceremony, the couple decided to have children together through an in vitro
fertilization procedure.
To that end, they entered into a contract with Georgia Reproductive Specialists in
Atlanta, Georgia, in October 20132 to impregnate Plaintiff with embryos created from
Plaintiff’s eggs and donated sperm. The contract consisted of several documents, with each
party signing as “Prospective Parent” or with Plaintiff signing as “Patient” and Defendant
signing as “Partner.” The documents included (1) a “Consent to Accept Anonymous
Donated Sperm,” with both signing as “Prospective Parent;” (2) a “Receipt of
Cryopreserved Sperm from Other Institutions,” with Plaintiff signing as “Patient” and
Defendant signing as “Partner;” and (3) an “Informed Consent,” with Plaintiff signing as
“Patient” and Defendant signing as “Partner.” It is undisputed that Defendant paid for the
procedure.
The procedure was successful, and Plaintiff gave birth to twin girls in July 2014.
Thereafter, Plaintiff stayed home with the children, and Defendant co-parented the children
while working outside the home. Defendant listed Plaintiff and the children as dependents
on her work-related medical insurance and as beneficiaries on her life insurance. And,
while Defendant did not adopt the children, nor was she listed as a parent on the children’s
birth certificates,3 the children shared Defendant’s last name of Potts because Plaintiff
legally changed her name to Potts prior to the children’s birth.
The parties were legally married on June 28, 2015, shortly following the United
States Supreme Court’s decision in Obergefell. Thereafter, the couple experienced marital
problems and, on August 3, 2017, Plaintiff filed a complaint for divorce claiming there
were no children born of the marriage. Defendant filed an answer and counter-complaint
alleging there were two children born of the marriage and requesting that the court
designate her as the primary residential parent. Plaintiff filed an answer denying Defendant
was the legal parent of the children.
On March 22, 2018, Plaintiff filed a motion for partial summary judgment asking
the court to summarily dismiss Defendant’s petition for custody of the children. Plaintiff
claimed it was undisputed that Defendant was not the biological parent of either child,
never adopted the children, and was not legally married to Plaintiff at the time of the
children’s birth. As such, Plaintiff contended that Defendant was not a parent under
Tennessee law, and consequently, she lacked standing to seek custody of the children.
2
Some of the documents were signed in October 2013, and some were signed in November 2013.
3
We recognize that some states have refused to list the birth parent’s same-sex spouse or partner
on the child’s birth certificate. See Pavan v. Smith, --- U.S. ----, 137 S. Ct. 2075, 2078 (2017).
-3-
In her response, Defendant relied on Tenn. Code Ann. § 36-2-304, which provides
that “[a] man is rebuttably presumed to be the father of a child if . . . [b]efore the child’s
birth, the man and the mother have attempted to marry each other in compliance with the
law, although the attempted marriage is or could be declared illegal, void and voidable[.]”
Id. § 304(a), (a)(2). Defendant argued it was undisputed that the parties participated in two
civil union ceremonies prior to the children’s birth and conducted themselves as if they
were married. Defendant further argued that, though Tennessee’s parentage statutes used
masculine terms, the statutes should apply equally to a woman who is married to another
woman, or to a woman who becomes a parent with another woman.
After a hearing, the court entered an order on August 10, 2018, denying Plaintiff’s
motion for partial summary judgment, stating:
Considering all of the foregoing and based on this Court’s understanding of
the facts in this case, the Court concludes that this is one of those cases where
the state’s current paternity and related statute are of limited benefit in
determining parentage in the age of modern reproductive technology,
especially considering the competing rights and interests of the parties and
children. . . . [T]his Court concludes that it is incumbent on the trial court to
garner all of the facts in this case in a full hearing on the merits, thereby
preserving them for appellate review. This Court’s resulting decision on the
issue of parentage may then be scrutinized against the background of all of
the facts in the case rather than those limited material facts agreed to by the
parties in [Plaintiff]’s motion for partial summary judgment.
Over the next several months, the parties settled their differences and, on March 18,
2019, the court entered the final divorce decree, incorporating an agreed-upon permanent
parenting plan that stated the children were a product of the parties’ marriage, Defendant
would be added to the children’s birth certificates, Plaintiff would be the primary
residential parent with 240 days of parenting time per year, and Defendant would be the
alternate residential parent with 125 days of parenting time. Defendant also agreed to pay
Plaintiff $1,953 per month in child support, and the permanent parenting plan provided for
joint decision-making authority. Neither party appealed, and the divorce decree became a
final judgment on April 17, 2019.
Three months later, on July 18, 2019, Plaintiff filed a Rule 60.02 motion requesting
relief from the final judgment as it pertained to the permanent parenting plan, contending
it was void for lack of subject matter jurisdiction.4 In essence, Plaintiff’s argument rested
4
Under Tenn. R. Civ. P. 60.02, a party may be entitled to relief from a final judgment for five
reasons: “(1) mistake, inadvertence, surprise or excusable neglect; (2) fraud . . . ; (3) the judgment is void;
(4) the judgment has been satisfied, released or discharged . . . ; or (5) any other reason justifying relief
-4-
on the premise that the court’s power to adjudicate a custody dispute in the context of a
divorce action was limited by the parental status of the litigants before it, i.e., the court had
no power to grant custody and visitation to a non-parent. Plaintiff argued that Tennessee’s
presumption of parentage statute, Tenn. Code Ann. § 36-2-304, did not apply to Defendant
because it addressed questions of paternity, and Defendant was not a man. Plaintiff also
argued that the statutes establishing parentage in cases of in vitro fertilization, Tenn. Code
Ann. §§ 36-2-401 to -403, applied only when the embryos were donated, and Plaintiff’s
embryos were not donated; they were created from her eggs.
Defendant did not file a written response to Plaintiff’s motion; however, her attorney
argued on her behalf at the motion hearing conducted on September 20, 2019. Defendant’s
attorney primarily argued that Tennessee’s presumption of parentage statutes should be
interpreted in a gender-neutral manner in light of the U.S. Supreme Court’s decision in
Obergefell. At the conclusion of the hearing, the court took the matter under advisement.
The trial court entered an order on November 13, 2019, denying Plaintiff’s motion
for relief from the judgment. The court analyzed her motion under Rule 60.02(3), which
allows courts to grant relief if the judgment is void due to a lack of subject matter
jurisdiction.5 See Turner v. Turner, 473 S.W.3d 257, 269 (Tenn. 2015). In reaching its
determination that Defendant had standing to pursue custody and visitation, the trial court
considered two statutes from Chapter 2, Title 36 of the Tennessee Code that pertain to
establishing parentage of a child: Tennessee’s “presumption of parentage” statute, Tenn.
Code Ann. § 36-2-304, and Tennessee’s in vitro fertilization statutes, Tenn. Code Ann. §§
36-2-401 to -403.
Specifically, the trial court considered the “holding out” provision of Tennessee
Code Annotated § 36-2-304, which provides that “[a] man is rebuttably presumed to be the
father of the child if . . . [, w]hile the child is under the age of majority, the man receives
the child into the man’s home and openly holds the child out as the man’s natural child.”
Id. § 304(a)(4). Although this statute uses gender-specific language, the court applied Tenn.
Code Ann. § 1-3-104(b), which permits a gender-neutral construction “except when the
contrary intention is manifest.”6 The trial court reasoned that, prior to Obergefell, marriage
was defined as a matrimonial union between a man and a woman; consequently, it was
from the operation of the judgment.” Plaintiff’s motion did not specify the section in Rule 60.02 under
which she was seeking relief.
5
At the hearing, Plaintiff informed the court that she was seeking relief under section (5) of Rule
60.02, but the court found section (3) to be more applicable to her issues.
6
Tennessee Code Annotated § 1-3-104(b) states that “[w]ords importing the masculine gender
include the feminine and neuter, except when the contrary intention is manifest.”
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clearly manifest that the parentage statutes referred exclusively to men or putative fathers.
But the court further reasoned:
[A]s a result of Obergefell v. Hodges, we now know that such verbiage,
though manifest, is unconstitutional. As a result, a statute referring to a
person by gender is not as “manifest” as it once seemed. Indeed, the
constitutionality of such statutes is now suspect and uncertain. Further,
modern advancements in reproductive technology have created problems for
the courts in applying the rigidity of the black letter law in determining the
actual legal parents of a child. These advances and the changes in social
mores have outpaced legislation designed to deal with these unique
circumstances. Unfortunately, the lives of minor children cannot be put on
hold for the law to catch up and properly deal with these issues.
Applying § 104(b)’s rule of construction, and reading the language in the statute in
a gender-neutral manner, the court determined that Defendant qualified for the presumption
of parentage in § 36-2-304(a)(4).7 In doing so, the court based its determination on the
following undisputed facts:
Defendant paid for all of the expenses associated with [Plaintiff]’s
impregnation and the birth of the children, the children bear the Defendant’s
last name of Potts, and it was the intent of the parties to create these children
and raise them as joint parents. Further, the Defendant listed [Plaintiff] and
minor children as dependents on her work-related major medical insurance
and as beneficiaries on her life insurance.
7
The Tennessee Attorney General has opined that using a gender-neutral construction of state
statutes may be necessary to comport with the holding in Obergefell:
There are many provisions in the Tennessee Code that use the words “husband,” “wife,”
“father,” “mother,” “woman,” “man,” or other gender-specific words such as “testator” or
“foreman.” Construed literally . . . —and depending on the context—some, but certainly
not all, such statutes might run afoul of the holding in Obergefell.
Op. Tenn. Att’y Gen. No. 17-29 (April 13, 2017). Applying the same reasoning, the dissent in Pippin v.
Pippin, No. M2018-00376-COA-R3-CV, 2020 WL 2499633 (Tenn. Ct. App. May 14, 2020) contended
that the word “husband” in Tennessee’s artificial insemination statute, Tenn. Code Ann. § 68-3-306, “must
be interpreted to include both the male and female genders” in order to comport with the United States
Supreme Court’s decisions in Obergefell and Pavan. Pippin, 2020 WL 2499633, at *11 (Bennett, J.
dissenting); see Obergefell, 576 U.S. at 670, 675–76 (holding that same-sex spouses are entitled to “the
constellation of benefits that the States have linked to marriage”); see also Pavan, --- U.S. at ----, 137 S.
Ct. at 2078 (“[R]elevant state laws [are] unconstitutional to the extent they treat[] same-sex couples
differently from opposite-sex couples.” (citing Obergefell, 576 U.S. at 670)).
-6-
And, considering that the parties entered into an agreed permanent parenting plan providing
that Defendant was the legal parent of the children, the court determined that Plaintiff had
not rebutted § 304(a)’s presumption.
The trial court also applied Tennessee’s statutes establishing the parentage of
children born as a result of “embryo transfer,” Tenn. Code Ann. §§ 36-2-401 to -403.
Specifically, Tenn. Code Ann. § 36-2-401 states:
This chapter provides a single means to establish parentage of children born
of donated embryo transfer to [the] recipient intended parent. It is intended
to promote the interests of children who may be born as a result of donated
embryo transfer. It is the intent that no adoption pursuant to chapter 1 of this
title or no parentage pursuant to chapter 3 of this title shall be required to
create parentage in [the] recipient intended parent pursuant to this part.
As the trial court noted, “recipient intended parent” is defined as “a person or
persons who receive a relinquished embryo and who accepts full legal rights and
responsibilities for such embryo and any child that may be born as a result of embryo
transfer.” Tenn. Code Ann. § 36-2-402(6). And the “legal embryo custodian” is defined as
“the person or entity, including the embryo transfer clinic, who hold the legal rights and
responsibilities for a human embryo and who relinquishes said embryo to another person.”
Id. § 402(5) (emphasis added).
With those definitions in mind, the trial court considered Tenn. Code Ann. § 36-2-
403, which provides in relevant part:
(a)(1) A legal embryo custodian may relinquish all rights and
responsibilities for an embryo prior to embryo transfer. A written
contract shall be entered into as appropriate when establishing embryo
parentage prior to embryo transfer for the legal transfer of rights to an
embryo and to any child that may result from the embryo transfer:
. . .
(B) Between a legal embryo custodian and each recipient intended
parent.
. . .
(d) A child born to a recipient intended parent as the result of embryo
relinquishment pursuant to subsection (a) shall be presumed to be the
legal child of the recipient intended parent; provided, that each legal
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embryo custodian and each recipient intended parent has entered into
a written contract pursuant to this part.
In applying these statutes to the case at bar, the trial court determined:
[B]oth “recipient intended parents” entered into a written contract with
Georgia Reproductive Specialists listing both the Plaintiff and the Defendant
as intended parents. Pursuant to T.C.A. § 36-2-403(d), the resulting child
shall be presumed to be the legal child of the “recipient intended parents.”
The Plaintiff argues that T.C.A. § 36-2-403 does not apply because the
Plaintiff’s eggs were not donated. The Court disagrees with the argument that
this [statute] does not apply. As noted above, there is no legal definition of
“donated embryo.” Although the Plaintiff’s eggs were not donated, the
semen was. The eggs were not viable fetuses. The resulting embryos only
existed by virtue of the donated sperm. The viable embryos were then in the
custody of the fertility clinic. The clinic subsequently transferred the viable
embryos via a medical procedure into the uterus of the Plaintiff, one of the
recipient intended parents. The parties had a written contract with the clinic
accepting the rights and responsibilities for the embryos and any children that
resulted therefrom. The Legislative intent is clearly set forth in T.C.A. § 36-
2-401: “It is the intent that no adoption pursuant to chapter 1 of this title or
no parentage pursuant to chapter 3 of this title shall be required to create
parentage in recipient intended parent (sic) pursuant to this part.”
Having found that Defendant had standing to pursue custody of the children under
Tenn. Code Ann. § 36-2-304(a)(4) and Tenn. Code Ann. §§ 36-2-401 to -403, the court
concluded as follows:
The United States Supreme Court’s ruling in Obergefell v. Hodges has
recognized the right of same-sex couples to wed and have conferred upon
them the same rights of their heterosexual brothers and sisters, to break the
hearts of their spouses by divorce. What has not been conferred upon them
is the right to break the hearts of their children by stripping from them a
loving parent. In this brave new world, where new human life is often created
in a Petri dish and the definition of a parent is now blurred, indistinct and
uncertain, this Court will default to the best interest of the children. Under
these facts, it will take a court superior to this Court to strip these children of
a parent they have known all their lives and the emotional and financial
support she provides.
Based on these and other facts and authority set forth in its ruling, the trial court
denied Plaintiff’s Rule 60.02 motion for relief from the judgment. Plaintiff filed a motion
to alter or amend the court’s decision, which the trial court denied. This appeal followed.
-8-
ANALYSIS
The dispositive issue in this appeal is whether the final divorce decree, with respect
to the permanent parenting plan, was void for lack of subject matter jurisdiction.8 To make
this determination, however, we must first consider whether section (3) or (5) of Rule 60.02
applies and then determine which standard of review applies.
I. TENNESSEE RULE OF CIVIL PROCEDURE 60.02
Plaintiff contends the trial court erred by analyzing her motion under section (3) of
Rule 60.02 instead of section (5). We disagree.
Plaintiff’s Rule 60.02 motion failed to identify the section upon which she relied;
however, at the hearing on the motion, Plaintiff informed the court that she was seeking
relief under section (5) of Rule 60.02. Following a discussion, the trial court found section
(3) to be applicable because her claim was based on a lack of subject matter jurisdiction.
Rule 60.02 of the Tennessee Rules of Civil Procedure provides:
On motion and upon such terms as are just, the court may relieve a
party . . . from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)
fraud . . . ; (3) the judgment is void; (4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated . . . ; or (5) any other reason justifying relief
from the operation of the judgment.
(Emphasis added).
Under section (3), a court may relieve a party from a final judgment if the judgment
is void due to a lack of subject matter or personal jurisdiction. See Turner, 473 S.W.3d at
268. That said, Plaintiff contends the trial court should have analyzed her claim under
8
The issues, as framed by the appellant, read:
1. Whether the court erred when it denied Cedra Potts (Taylor)’s Rule 60.02(5) Motion
to Set Aside the final decree?
2. Whether the court has subject matter jurisdiction to ratify an agreed upon Marital
Dissolution Agreement and Parenting Plan making a non-biological, non-gestational
same sex spouse a natural parent to children where there is no biological or gestational
connection to the children and the children were not born within 300 days of the
marriage?
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section (5), which affords relief for any other justifiable reason, usually “in the most
extreme, unique, exceptional, or extraordinary cases.” Holiday v. Shoney’s South, Inc., 42
S.W.3d 90, 94 (Tenn. Ct. App. 2000). Significantly, however, section (5) “generally applies
only to circumstances other than those contemplated in sections (1) through (4) of Rule
60.02.” Id. (citations omitted). Furthermore, Plaintiff agreed to the permanent parenting
plan granting Defendant visitation, and Rule 60.02(5) cannot “be used to relieve a party
from free, calculated, and deliberate choices [it] has made.” Federated Ins. Co. v. Lethcoe,
18 S.W.3d 621, 625 (Tenn. 2000) (quoting Banks v. Dement Const. Co., 817 S.W.2d 16,
19 (Tenn. 1991)).
As noted in Ferguson v. Brown, “to give effect to the substance of the motion
according to the relief sought, [the court] will review the issue based on the applicable legal
standard, regardless of the rule referenced by [the movant] in his motion.” 291 S.W.3d 381,
387 (Tenn. Ct. App. 2008) (citations omitted). Therefore, we hold that the trial court did
not err by analyzing Plaintiff’s issues under Rule 60.02(3).
II. STANDARD OF REVIEW
Generally, we review a trial court’s decision to grant or deny a Rule 60.02 motion
under the abuse of discretion standard; however, as the Tennessee Supreme Court noted in
Turner, subject matter jurisdiction is a question of law that we review pursuant to the de
novo standard. 473 S.W.3d at 269. Therefore, as Turner instructs, we are to apply the “de
novo [standard of] review, with no presumption of correctness, when reviewing a trial
court’s ruling on a Tennessee Rule 60.02(3) motion to set aside a judgment as void.” Id.
III. SUBJECT MATTER JURISDICTION
“Subject matter jurisdiction refers to the power of a court to adjudicate the
particular category or type of case brought before it.” Id. Subject matter jurisdiction “can
only be conferred on a court by the constitution or a legislative act.” Chapman v. DaVita,
Inc., 380 S.W.3d 710, 712 (Tenn. 2012). It “either exists or it does not.” State ex rel.
Comm’r of Dep’t of Transp. v. Thomas, 336 S.W.3d 588, 605 (Tenn. Ct. App. 2010). “The
parties cannot confer subject matter jurisdiction on a trial or an appellate court by
appearance, plea, consent, silence or waiver.” Staats v. McKinnon, 206 S.W.3d 532, 542
(Tenn. Ct. App. 2006) (citations omitted).
While subject matter jurisdiction focuses on the claim and whether the court has the
power to adjudicate it, see Chapman, 380 S.W.3d at 712, the doctrine of standing focuses
on the party asserting the claim and whether that party “is entitled to pursue judicial relief,”
City of Memphis v. Hargett, 414 S.W.3d 88, 97 (Tenn. 2013). When a statute specifically
designates who may bring a cause of action, “the issue of standing is interwoven with that
of subject matter jurisdiction and becomes a jurisdictional prerequisite.” Hargett, 414
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S.W.3d at 98 n.8 (quoting Osborn, 127 S.W.3d at 740).9 The Tennessee Supreme Court’s
decisions in Osborn v. Marr and Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013) illustrate
this principle.
In Osborn, the Court determined that standing was interwoven with subject matter
jurisdiction for the purposes of Tenn. Code Ann. § 36-1-113(b) because the statute
designated who could bring a petition to terminate parental rights:
The prospective adoptive parent(s) of the child, any licensed child-placing
agency having custody of the child, the child’s guardian ad litem, a court
appointed special advocate (CASA) agency, or the department shall have
standing to file a petition pursuant to this part or pursuant to title 37 to
terminate parental or guardianship rights of a person alleged to be a parent
or guardian of such child. The prospective adoptive parents shall have
standing to request termination of parental or guardianship rights in the
adoption petition filed by them pursuant to this part.
127 S.W.3d at 739 (quoting Tenn. Code Ann. § 36-1-113(b)). Thus, the Supreme Court
reasoned that the trial court’s power to adjudicate such a petition was dependent on the
status of the party or parties who filed it. Id. at 740.
Likewise, in Lovlace, the Tennessee Supreme Court held that standing was
jurisdictional for the purposes of Tenn. Code Ann. § 36-6-306, Tennessee’s grandparent
visitation statute, because the statute provided:
Any of the following circumstances, when presented in a petition for
grandparent visitation . . . necessitates a hearing if such grandparent
visitation is opposed by the custodial parent or parents or custodian or if
the grandparent visitation has been severely reduced by the custodial
parent or parents or custodian . . . .
9
Our courts recognize two types of standing—constitutional standing and non-constitutional
standing. Hargett, 414 S.W.3d at 97. “Non-constitutional standing focuses on considerations of judicial
restraint, such as whether a complaint raises generalized questions more properly addressed by another
branch of the government, and questions of statutory interpretation, such as whether a statute designates
who may bring a cause of action or creates a limited zone of interests.” Id. at 98. “Ordinarily, issues of non-
constitutional standing are not essential to subject matter jurisdiction and are waived if not properly
preserved.” Id. at 98 n.8. Because subject matter jurisdiction is not waivable, see Staats, 206 S.W.3d at 542,
the issue of standing cannot be waived when a statute designates who may bring a cause of action, see
Hargett, 414 S.W.3d at 98 n.8.
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Id. § 306(a) (emphasis added). Thus, the Court held that, if the Lovlaces did not meet the
statutory definition of “grandparent,” the trial court did not have subject matter jurisdiction
to grant visitation. Lovlace, 418 S.W.3d at 17.
Here, Tenn. Code Ann. § 36-6-106(a) requires courts to make a custody
determination in divorce actions that involve the custody of minor children:
In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a
minor child, the determination shall be made on the basis of the best interest
of the child. In taking into account the child’s best interest, the court shall
order a custody arrangement that permits both parents to enjoy the maximum
participation possible in the life of the child consistent with the factors set
out in this subsection (a), the location of the residences of the parents, the
child’s need for stability and all other relevant factors.
(Emphasis added). A related statute—Tenn. Code Ann. § 36-6-101(a)(3)(A)—states:
Except when the court finds it not to be in the best interests of the affected
child, each order pertaining to the custody or possession of a child arising
from an action for absolute divorce, divorce from bed and board or
annulment shall grant to each parent the rights listed in subdivisions
(a)(3)(B)(i)–(vi) during periods when the child is not in that parent’s
possession or shall incorporate such rights by reference to a prior order. Other
orders pertaining to custody or possession of a child may contain the rights
listed in subdivisions (a)(3)(B)(i)–(vi).
(Emphasis added).
Clearly, Tenn. Code Ann. §§ 36-6-101 and -106 grant the court the power to award
custody and visitation and associated rights to a parent of the children; therefore, “the issue
of standing is interwoven with that of subject matter jurisdiction and becomes a
jurisdictional prerequisite.” Osborn, 127 S.W.3d at 740. As such, if Defendant did not fit
the statutory definition of “parent,” she did not have standing to pursue her claims and,
accordingly, the court did not have jurisdiction to grant visitation.
IV. WHETHER DEFENDANT HAD STANDING
Whether Defendant had standing and whether the trial court had subject matter
jurisdiction requires us to construe the term “parent” under Tennessee’s custody and
visitation statutes. When construing statutes, our task “is to ascertain and effectuate the
legislature’s intent.” Kite v. Kite, 22 S.W.3d 803, 805 (Tenn. 1997). If the language in a
statute is unambiguous, “we must apply its plain meaning without a forced interpretation
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that would limit or expand the statute’s application.” State v. Walls, 62 S.W.3d 119, 121
(Tenn. 2001); see Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn. 2000)
(reasoning that “it is not for the courts to alter or amend a statute”). When the statute is
ambiguous, “we may reference the broader statutory scheme, the history of the legislation,
or other sources.” Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011).
While Tennessee’s custody and visitation statutes do not provide a definition of
“parent,” there are other statutes in title 36—which establishes the law on “Domestic
Relations”—that do. In looking to those statutes for guidance, we apply the principle of
statutory construction that “[s]tatutes ‘in pari materia’—those relating to the same subject
or having a common purpose—are to be construed together.” Owens v. State, 908 S.W.2d
923, 926 (Tenn. 1995). The trial court looked to, inter alia, two sets of provisions in chapter
2 of title 36: the “presumption of parentage” statute, Tenn. Code Ann. § 36-2-304, and the
in vitro fertilization statutes, Tenn. Code Ann. §§ 36-2-401 to -403. Our analysis will focus
on §§ 36-2-401 to -403 because the children at issue in this case were born as a result of in
vitro fertilization, and the purpose of Tenn. Code Ann. §§ 36-2-401 to -403 is to provide a
single means of establishing the parentage of children born through the in vitro fertilization
procedure. Tenn. Code Ann. § 36-2-401.
Tennessee Code Annotated § 36-2-403(a)(1)(B) provides that a legal embryo
custodian—the embryo transfer clinic—must enter into a written contract with the
“recipient intended parent” or parents transferring full legal rights to the embryo or
embryos, and to any children that may result, to the recipient intended parent or parents.
See Tenn. Code Ann. § 36-2-402(5) (defining “legal embryo custodian” as including the
embryo transfer clinic); see also Tenn. Code Ann. § 36-2-402(6) (defining “recipient
intended parent” as “a person or persons who receive a relinquished embryo and who
accepts full legal rights and responsibilities for such embryo and any child that may born
as a result of embryo transfer”). Provided that the legal embryo custodian and the recipient
intended parents have entered into a written contract in accordance with § 403(a), a child
born of the in vitro fertilization procedure “shall be presumed to be the legal child of the
recipient intended parent.” Tenn. Code Ann. § 36-2-403(d).10 More specifically, as the
10
Specifically, Tenn. Code Ann. § 36-2-403 provides:
(a)(1) A legal embryo custodian may relinquish all rights and responsibilities for an
embryo prior to embryo transfer. A written contract shall be entered into as
appropriate when establishing embryo parentage prior to embryo transfer for the
legal transfer of rights to an embryo and to any child that may result from the
embryo transfer:
(A) Between legal embryo custodians and the embryo transfer clinic; or
(B) Between a legal embryo custodian and each recipient intended parent.
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Tennessee Supreme Court explained in In re Baby, 447 S.W.3d 807 (Tenn. 2014), under §
36-2-403, the child “shall be considered the child of each intended parent who is a party to
the contract, without any further requirement to terminate the genetic parents’ rights or for
the intended parents to adopt.” Id. at 831 (citing Tenn. Code Ann. § 36-2-403(d)).
The documents from Georgia Reproductive Specialists constitute a contract
between Georgia Reproductive Specialists and the parties to create embryos using
Plaintiff’s eggs and donated sperm and to implant the embryos into Plaintiff. The legal
embryo custodian, Georgia Reproductive Specialists, signed these documents along with
Plaintiff and Defendant prior to the procedure. Plaintiff and Defendant signed the
documents as “Patient” and “Partner,” respectively, and both Plaintiff and Defendant
signed as “Prospective Parent.” Because Plaintiff and Defendant contractually agreed to
accept full legal rights and responsibilities for the embryos and any children that resulted,
they are the recipient intended parents under the statute.
Plaintiff concedes that Defendant was a party to the contract with Georgia
Reproductive Specialists, but she contends the in vitro fertilization statutes do not apply to
Defendant because the embryos that were subject to the contract were not donated, as
required by Tenn. Code Ann. § 36-2-401. The statute states, “This chapter provides a single
means to establish parentage of children born of donated embryo transfer to [the] recipient
intended parent.” Id. (emphasis added). Plaintiff contends that a “donated embryo” results
(2) The contract shall be signed, as appropriate, by each legal embryo custodian for
such embryo, by the embryo transfer clinic or by each recipient intended parent in
the presence of a notary public. Initials or other designations may be used if the
individuals desire anonymity.
(b) If the embryo was created using donor gametes, the sperm or oocyte donors who
irrevocably relinquished their rights in connection with in vitro fertilization shall
not be entitled to any notice of the embryo relinquishment, nor shall their consent
to the embryo relinquishment be required.
(c) Upon embryo relinquishment by each legal embryo custodian pursuant to
subsection (a), the legal transfer of rights to an embryo shall be considered
complete at the time of thawing or to such other time as the parties may agree, and
the embryo transfer shall be authorized.
(d) A child born to a recipient intended parent as the result of embryo relinquishment
pursuant to subsection (a) shall be presumed to be the legal child of the recipient
intended parent; provided, that each legal embryo custodian and each recipient
intended parent has entered into a written contract pursuant to this part.
(e) Any and all prior legal embryo custodians whose donation of an embryo has
resulted in the birth of a child to a recipient intended parent pursuant to subsection
(a) shall have no rights or responsibilities with such child and of the child to them.
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when both the sperm and the egg are donated, and the embryos in this case were created
from Plaintiff’s eggs.
The in vitro fertilization statutes do not define “donated embryo,” but a case decided
by the Tennessee Supreme Court prior to the enactment of §§ 36-2-401 to -403, In re
C.K.G., 173 S.W.3d 714 (Tenn. 2005), is factually similar to the case at bar and sheds some
light on how we should construe these statutes. In looking to In re C.K.G. for guidance, we
resort to the following well-established canon of statutory construction:
The General Assembly is presumed to know the state of the existing law
when it enacts legislation. This presumption includes the General
Assembly’s knowledge of the state of the common law when it enacts
legislation. Thus, legislative acts are construed with reference to the
common law and should not be construed to displace the common law any
further than they expressly declare or necessarily imply. To the extent that a
legislative act does not supersede the common law, the common law
continues in force.
Seals v. H & F, Inc., 301 S.W.3d 237, 257 (Tenn. 2010) (Koch, J., concurring in part,
dissenting in part) (citations omitted).
In In re C.K.G., a dispute arose between an unmarried man and woman who decided
to have children together through in vitro fertilization. 173 S.W.3d at 717. They entered
into a contract with a reproductive clinic to produce embryos using donor eggs and the
man’s sperm and to have the embryos implanted in the woman. Id. at 717–18. The
procedure was successful, and the woman gave birth to triplets. Id. at 718. When the
parties’ relationship deteriorated, the woman filed a parentage action seeking custody and
child support. Id. In response, the man sought sole custody, arguing that, because the
woman was not biologically related to the children, she did not qualify as a parent under
Tennessee law and thus did not have standing to seek custody. Id. at 718–19.
Upon reviewing Tennessee’s parentage statutes as they existed at that time, the
Court found that the statutes were not helpful in resolving a custody dispute arising from
the in vitro fertilization procedure. Id. at 722–23. This was in part because, under these
statutes, parentage was premised on the parties’ biological relationship to the children. Id.
at 722. The Court opined that this was problematic considering that the “technological
fragmentation of the procreative process, insofar as it includes techniques for egg and
sperm donation and preservation, has engendered a bewildering variety of possibilities
which are not easily reconciled with our traditional definitions of ‘mother,’ ‘father,’ and
‘parent.’” Id. at 721.
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Nevertheless, the Court held that, though the woman lacked a biological relationship
to the triplets, she was their “legal mother.” Id. at 730. This holding was based, in part, on
the fact that the woman and man “voluntarily demonstrated the bona fide intent that [the
woman] would be the children’s legal mother and agreed that [she] would accept legal
responsibility as well as the legal rights of parenthood.” Id. The Court concluded its
decision with a call for the General Assembly to act: “Given the far-reaching, profoundly
complex, and competing public policy considerations necessarily implicated by the present
controversy, we conclude that crafting a general rule to adjudicate all controversies so
implicated is more appropriately accomplished by the Tennessee General Assembly.” Id.The Court decided In re C.K.G. in 2005. The General Assembly enacted Tenn. Code
Ann. §§ 36-2-401 to -403 in 2013. Thus, we presume that, in doing so, the General
Assembly intended to address the issues raised by In re C.K.G.—circumstances such as
this one, where the parties clearly intend to become parents through in vitro fertilization,
and one or both of the parties is not biologically related to the child or children produced
as a result of that procedure.11 Moreover, we find nothing in the statute that explicitly
requires that all of the gametes be donated in order for the statute to apply, nor is it even
implied. Rather, we read § 36-2-403 as contemplating circumstances such as this one where
either the sperm or the egg (“oocyte”) is donated, as well as situations where both are
donated:
If the embryo was created using donor gametes, the sperm or oocyte donors
who irrevocably relinquished their rights in connection with in vitro
fertilization shall not be entitled to any notice of the embryo relinquishment,
nor shall their consent to the embryo relinquishment be required.
11
Tennessee Code Annotated § 36-2-401 states, “It is the intent that no adoption pursuant to chapter
1 of this title or no parentage pursuant to chapter 3 of this title shall be required to create parentage in
[the] recipient intended parent pursuant to this part.” (Emphasis added). Chapter 3 of title 36 concerns
marriage. Thus, the legislature expressed its intent that the marital status of the parties would not be relevant
when establishing parentage in accordance with the embryo transfer statutes. This is not the case with
Tennessee’s artificial insemination statute, Tenn. Code Ann. § 68-3-306, which requires that the parties be
married at the time of the child’s birth. See In re C.K.G., 173 S.W.3d at 728. As such, the artificial
insemination statute has been problematic for same-sex couples who conceived children through artificial
insemination prior to the Obergefell decision legally recognizing same-sex marriage. The same-sex couple
in Pippin, for example, conceived a child through an artificial insemination procedure when the law in
Tennessee limited marriage to opposite-sex couples. 2020 WL 2499633, at *12. The dissent argued that
there was no difference between the plaintiff “and the ‘husband’ in Tenn. Code Ann. § 68-3-306 except for
a marriage that the State of Tennessee would not allow” due to the State’s unconstitutional law forbidding
same-sex marriage. Id. at *12. Because the embryo transfer statutes are gender neutral and do not reference
the marital status of the parties, we need not consider the effect of Obergefell in this case.
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Id. § 403(b) (emphasis added). Therefore, considering the language of the statute and the
circumstances surrounding its enactment, we agree with the trial court’s determination that
“donated embryo” refers to an embryo created from donated sperm, a donated egg, or both.
In addressing the issues raised by the in vitro fertilization procedure, the legislature
clearly expressed its intent that contract principles—not biology—would control the
question of parentage. Specifically, the parentage inquiry centers on whether the parties
contractually agreed to accept “full legal rights and responsibilities for such embryo and
any child that may be born as a result of embryo transfer.” Tenn. Code Ann. § 36-2-402(6).
Likewise, the Court held in In re C.K.G. that the non-biologically-related woman was the
children’s legal mother because she accepted “legal responsibility and the legal rights of
parenthood.” 173 S.W.3d at 730. Importantly, in In re C.K.G., the man’s status as the
biological parent did not give him an advantage over the woman, id., and, under § 36-2-
403, Plaintiff’s status as the biological parent does not place her in a superior position to
that of Defendant. Rather, because both parties in this case contractually agreed to accept
legal responsibility for the embryos and any children born as a result, they are on an equal
footing as the parents of the children.
In years past, parental rights were premised on the parties’ biological relationship
to the children and the parties’ marital status at the time of the children’s birth. See State
ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 181–83 (Tenn. Ct. App. 2000). This was based
on society’s past understanding of “family” as the traditional nuclear family—“a married
heterosexual couple and their children, if any.” In re Bernard T., 319 S.W.3d 586, 597
(Tenn. 2010). But, the traditional nuclear family is no longer the typical American family.
Id. With increased rates of divorce, non-marital childbearing, and same-sex marriage—and
advances in reproductive technology—our society’s understanding of what constitutes a
family has changed, and the legal definition of “parent” has slowly changed with it, as it
must. See id. at 597–98.
Thus, for the foregoing reasons, we hold that Defendant is a parent of the minor
children. Because Defendant is a parent of the children, she had standing to seek custody
and visitation in the divorce proceeding. As a consequence, the trial court had subject
matter jurisdiction to preside over the competing claims and to, inter alia, enter an order
approving the agreed-upon permanent parenting plan. Resultantly, the permanent parenting
plan is not void for lack of subject matter jurisdiction. For these reasons, we affirm the trial
court’s decision to deny Plaintiff’s Rule 60.02 motion.
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IN CONCLUSION
Having determined that Defendant is a legal parent of the children, we hold that the
trial court had subject matter jurisdiction to award custody and visitation and affirm its
decision to deny Plaintiff’s Rule 60.02 motion. Accordingly, we affirm the trial court in all
respects, and this matter is remanded with costs of appeal assessed against Cedra Deanntre
Potts (Taylor).
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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