Tennessee lawmaker fights backlash against artificial insemination bill

A rural Tennessee Republican lawmaker is blaming the media for backlash after filing legislation that opponents say takes aim at same-sex couples who want to have children through a surrogate by declaring those children illegitimate under state law.

Rep. Terri Lynn Weaver, R-Lancaster, filed legislation late last week that would repeal a state statute that declares children conceived via artificial insemination as "legitimate," if they are born to a married woman and her consenting husband.

On Monday, she and Senate sponsor, Sen. Joey Hensley, R-Hohenwald, issued a joint statement after what they called "extremely inaccurate interpretations" of the bill portrayed by the media.

"These reports upset the many husbands and wives who struggle with fertility by reporting that repealing the law would ‘label the child as illegitimate despite the couple being married and both consenting.' This is false," Weaver said in the release.

“Under this legislation, Tennessee law would continue to provide that a child born to a married woman will be considered the child of her husband. By repealing the law, and relying on other Tennessee statutes that remain, the state will no longer intrude into how a woman conceives her child."

But no state law yet makes clear what should happen if children are born to married same-sex couples via artificial insemination. State laws continue to use the gender-specific terms "husband" and "wife" and do not include neutral terms such as "spouse."

In a Facebook post Sunday, Weaver said there was "much confusion" about the bill and that its perception with the public has been misconstrued. In that post she insists the bill "does not apply to same sex marriages at all."

She explains in the post that Attorney General Herbert Slatery issued a brief in a lawsuit "a couple of months ago" that said the state's law was unconstitutional, without elaborating if the law she was referencing was about artificial insemination or marriage.

"So, the repeal of the law does not de-legitimize a child conceived by insemination and, to be honest, the law
that will remain on the books is less intrusive into the relationship of a husband and wife than the statute being repealed," she wrote.

But an opinion written by Slatery in October in response to a divorce case in Knox County states that the courts should interpret the marital terms in a manner that applies equally to same-sex couples as it would to heterosexual couples, to which the law is still clearly written.

"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," Slatery wrote. "After Obergefell, of course, that is no longer the case. In order to preserve the constitutionality of Tenn. Code Ann. 68-3-306, therefore, it must now be construed to read: 'A child born to a married woman as a result of artificial insemination, with consent of the married woman's spouse, is deemed to be the legitimate child of the two spouses.'

"The Court should rule that Tenn. Code Ann. 68-3-306 must be construed so as to apply to a child born as a result of artificial insemination during a same-sex marriage and that, as applied, the statute is constitutional," Slatery concluded in the opinion to the parental rights debate in the highly publicized divorce case between Sabrina and Erica Witt.

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Chris Sanders, executive director of the Tennessee Equality Project, called the bill "discriminatory" and more far reaching than what most assume. He said the bill doesn't just hurt same-sex couples, but even unmarried heterosexual couples who he said might have to go to court to establish paternity if the statute were repealed.

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

Weaver pointed to a separate state law that states paternity can be established other ways, but only if the couple is married.

Jake Lowary covers Tennessee politics and state government for the USA Today Network. Follow him on Twitter @JakeLowary.