Navigating surrogacy as an LGBT couple or individual in Tennessee requires understanding the state’s complex legal landscape. While Tennessee doesn’t explicitly prohibit surrogacy for same-sex couples, the legal framework presents unique challenges for LGBT families seeking to build their families through gestational surrogacy.

Tennessee operates in a legal gray area when it comes to surrogacy. The state’s primary surrogacy law, Tennessee Code Annotated Section 36-1-102(50), merely defines surrogacy within the adoption code without establishing comprehensive regulations or protections. This creates uncertainty that particularly affects LGBT couples, who face additional complexities in establishing parental rights.

Given these legal complexities, many LGBT couples find that working with experienced professionals is essential when they’re ready to find a surrogate for their family-building journey.

LGBT Surrogacy Laws in Tennessee and Establishing Parentage: Will We Get a Pre-Birth Order?

Tennessee courts have strict limitations on when they’ll issue pre-birth parentage orders for LGBT couples. The key restrictions include:

• Only the biological father can obtain a pre-birth order – Even in same-sex male couples using an egg donor, only the partner who provided the sperm will be recognized as a legal parent before birth
• The gestational carrier remains on the birth certificate initially – She will be named as the legal mother until the intended parent completes a post-birth adoption, regardless of whether you’re married or unmarried
• No comprehensive pre-birth orders for LGBT couples – Tennessee courts do not issue orders that would name both same-sex parents simultaneously

For lesbian couples, the situation is even more restrictive. Since only the biological father can obtain a pre-birth order, lesbian couples using donor sperm cannot obtain pre-birth recognition of either parent’s rights. The gestational carrier remains the legal mother on the birth certificate until adoption proceedings are completed.

The requirement for a genetic connection significantly impacts LGBT families. Unless the intended parents are a heterosexual couple who are both genetically related to the child, the courts permit only for the paternity of the biological father to be established pre-birth. This creates a fundamental disadvantage for same-sex couples who, by definition, cannot both have genetic ties to their child.

Can the Non-Genetic Parent in a Gay Couple Be Declared a Legal Parent in Tennessee?

The non-genetic parent in a same-sex couple faces a mandatory adoption process to establish legal parentage. This process involves several important steps and requirements:

Marriage is required for second-parent adoptions. LGBTQ+ couples can complete a second-parent adoption in Tennessee if they are legally married. This adoption process allows both names to appear on a corrected birth certificate, but it involves additional legal proceedings, costs, and delays that heterosexual couples using their own gametes don’t face.

The adoption process for gay male couples typically follows this sequence:

• First, only the biological father receives pre-birth recognition
• Second, in the proceeding for the Order of Parentage, the non-genetic parent is awarded a partial guardianship over the child
• Third, the court that awarded the guardianship can then hear and award the adoption, creating an exception to Tennessee’s usual residency requirements for adoption

The courts have clarified that when an intended parent is not genetically related to the child, and is married to a genetic parent, an adoption shortly after the birth is necessary to establish the non-genetic parent’s parentage. This process can take several weeks to months, during which time the non-genetic parent lacks full legal recognition.

What If We’re Not Married — Can We Both Be Legal Parents?

Marriage significantly affects your ability to both achieve legal parentage in Tennessee. Tennessee does not allow unmarried people to adopt each other’s children in a quasi-step-parent adoption. This creates a major barrier for unmarried LGBT couples.

Key limitations for unmarried couples include:

• Out-of-state adoption required – For unmarried same-sex couples, the non-genetic parent would need to apply for a second-parent adoption in another state that allows for this situation
• Foreign decree recognition – If your home state permits unmarried second-parent adoptions, Tennessee may honor that foreign adoption decree, but this creates additional complexity and potential legal risks
• Marriage requirement for donated gametes – If you’re working with donated eggs, you need to be married to have a Tennessee surrogacy journey

The intended parents can have their parentage recognized in a pre-birth Order of Parentage (regardless of marital status) if they provided the sperm and egg from their own bodies. However, since LGBT couples typically require donor gametes, the marriage requirement effectively excludes unmarried LGBT couples from pursuing surrogacy in Tennessee.

The marriage requirement stems from Tennessee’s adoption laws, which only allow for related parent (step-parent) adoptions if the parties are married. This creates a significant legal disadvantage for LGBT couples who cannot legally marry in their home jurisdiction or choose not to marry.

I’m a Single Parent — Can I Still Be Declared the Legal Parent in Tennessee?

Single LGBT intended parents can pursue surrogacy in Tennessee, but face specific limitations based on genetic connection and gender.

Single men have a clearer legal path. If you are a genetic parent, you can have your parentage recognized in a pre-birth Order. This means single gay men using their own sperm with donor eggs can obtain pre-birth recognition as the legal father.

Birth certificate corrections for single fathers:

• The birth certificate will initially list the carrier as the “mother”
• You can petition to have this changed to specify “None” or “Unknown” in the mother field
• Zealous advocacy by family law attorneys has resulted in policy changes allowing single fathers to remove the surrogate’s name from the birth certificate

An unmarried man can get the initial birth certificate amended to remove the Gestational Carrier’s name and replace it with “None” or “Unknown”. This provides single men with a clearer path to sole legal parentage than unmarried couples face.

Single lesbian intended parents face more challenges, as they typically require both donor sperm and a gestational carrier. Without a genetic connection, establishing legal parentage becomes more complex and may require pursuing the surrogacy in a more LGBT-friendly state.

How Will Our Names Appear on the Birth Certificate in Tennessee?

Tennessee accommodates same-sex couples on birth certificates, though not without some awkwardness. LGBTQ+ parents are listed as “Father and Father” or “Mother and Mother.” The Department of Health marks out the incorrect gender term and types in the correct one. However, the crossed-out term remains on the certificate.

This means that if you’re a married gay male couple who completes second-parent adoption, your birth certificate will show both partners as “Father,” but you may see evidence of the correction process. A couple can get the initial birth certificate amended to replace her name with the name of the non-genetic father only after a stepparent adoption is completed in their home state or in Tennessee.

The initial birth certificate will list the gestational carrier as the mother in most LGBT surrogacy cases. Only after completing the adoption process will the certificate be amended to reflect both intended parents. This creates a period where the official documentation doesn’t match the family reality.

How Long Will It Take to Get the Birth Certificate?

Expect to receive the finalized birth certificate within about a week via an electronic system. However, this timeline applies to the initial birth certificate listing the gestational carrier.

For LGBT couples requiring adoption, you’ll receive the corrected birth certificate showing both parents only after completing the second-parent adoption process. It is typically available for pickup in 5-10 business days after the adoption is finalized. The entire process from birth to final birth certificate can take several months for LGBT couples.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days if you need to travel quickly with your newborn.

Do We Need a Second Parent Adoption After Surrogacy in Tennessee?

For most LGBT couples, second-parent adoption is mandatory, not optional. A post-birth adoption will be necessary when only one or neither parent is genetically related to the child. Since LGBT couples typically require donor gametes, this affects the vast majority of same-sex couples pursuing surrogacy.

The exception would be for gay male couples where both partners are the genetic father (using both partners’ sperm to create multiple embryos), but even then, only one genetic father per child can receive pre-birth recognition. The non-genetic parent must still complete adoption proceedings.

LGBTQ+ couples can complete a second-parent adoption in Tennessee if they are legally married. This adoption allows both names to appear on the birth certificate. The adoption process involves court proceedings, additional legal fees, and waiting periods that can extend the timeline for achieving full legal recognition significantly.

For unmarried couples, Tennessee does not allow unmarried people to adopt each other’s children in a quasi-step-parent adoption, requiring them to pursue adoption in their home state if their state permits unmarried second-parent adoptions.

How Surrogacy Contracts Protect LGBT Parents in Tennessee

Given Tennessee’s complex legal landscape, a well-drafted surrogacy contract becomes crucial for LGBT intended parents. Intended parents and their surrogate must be represented by separate surrogate attorneys to ensure that both parties’ rights and interests are protected.

Your surrogacy contract should address several key protections specific to LGBT families:

• Parentage process expectations – Establish clear understanding that the non-genetic parent will require adoption proceedings
• Medical decision-making authority – Ensure that genetic parents have medical decision-making authority while recognizing the intended family structure
• Compensation compliance – Structure payments to comply with Tennessee’s restrictions on payments related to parental rights termination
• Medical scenario planning – Address potential medical decisions, including selective reduction or termination

Important compensation restrictions: Compensation to be paid to a surrogate may not be contingent upon her surrender of the child or her agreement to terminate her parental rights in the child. Instead, compensation must be tied to the surrogate’s services, reasonable expenses, and anticipated medical needs.

Tennessee’s abortion laws are among the most restrictive in the country, which can affect medical decision-making during pregnancy. LGBT intended parents should ensure their contract addresses these scenarios clearly.

For many LGBT couples, working with experienced agencies can help ensure contracts comply with Tennessee law while protecting your rights throughout the process.

Why Work With a Surrogacy Agency If You’re an LGBT Couple in Tennessee

LGBT couples face additional legal complexities that make agency support particularly valuable. Agencies specializing in LGBT surrogacy understand the unique challenges same-sex couples face in Tennessee and can help navigate the legal requirements more effectively.

Key benefits of working with an experienced agency:

• Legal expertise – Maintain networks of attorneys who specialize in LGBT family formation and understand Tennessee’s specific requirements for second-parent adoptions
• Process coordination – Help coordinate the various legal steps, from pre-birth orders to post-birth adoption proceedings, ensuring no critical deadlines are missed
• Supportive matching – Identify gestational carriers who are explicitly supportive of LGBT family building (many surrogates even specify that they prefer helping same-sex parents)
• Multi-state options – Help coordinate care across state lines if Tennessee’s legal environment proves too restrictive for your specific situation

Furthermore, agencies can help you evaluate surrogacy options in more LGBT-friendly states while still maintaining some connection to Tennessee if desired. This flexibility can be crucial for LGBT couples who discover that Tennessee’s legal framework doesn’t meet their needs.

Finding an LGBT-Friendly Surrogacy Attorney in Tennessee

Given the complexity of LGBT surrogacy law in Tennessee, selecting an experienced attorney is crucial. Here are AAAA (Academy of Adoption and Assisted Reproduction Attorneys) members licensed in Tennessee who have experience with LGBT surrogacy cases:

• Julia J. Tate-Keith, Esq. – Murfreesboro Specializes in Tennessee surrogacy and assisted reproduction law with extensive LGBT family formation experience. AAAA member since 2014. Website: tnbabylaw.com
• Lisa L. Collins – Nashville
  Practices assisted reproduction law, including surrogacy and LGBT family formation. Experienced with Tennessee’s complex parentage requirements. Website: tnadoption.com
• Theodore R. Kern – Knoxville Handles surrogacy and assisted reproductive technology cases with experience in LGBT family building. Website: tedkernlaw.com
• Jennifer Hall – Nashville Specializes in assisted reproduction and adoption law, including LGBT family formation matters. Website: adoptmidtn.com
• Tim Schlesinger – Clayton, MO (licensed in Tennessee) Specializes in assisted reproduction, LGBTQ+ family formation, egg donation, embryo donation, sperm donation and surrogacy. He’s a member of the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) Website: mwflg.com

When selecting an attorney, ensure they have specific experience with LGBT surrogacy cases in Tennessee and understand both the pre-birth order process and post-birth adoption requirements that same-sex couples typically face.

How to Get Started With LGBT Surrogacy in Tennessee

Beginning your LGBT surrogacy journey in Tennessee requires careful planning and the right professional support. Start by consulting with an experienced surrogacy attorney who can evaluate your specific situation and explain how Tennessee’s laws will apply to your family structure.

Important initial considerations:

• Evaluate whether Tennessee is right for your situation – While surrogacy is permitted for LGBT couples, the legal challenges may make other states more attractive
• Consider states with more comprehensive LGBT-friendly surrogacy laws – These might offer simpler pathways to parentage
• Ensure legal protections are in place – Have separate legal representation from your surrogate, understand the parentage timeline, and prepare for the adoption process before beginning medical procedures

Many LGBT couples find that working with an experienced agency provides crucial support throughout the process. Agencies can help with legal coordination, surrogate matching, and navigating the unique challenges that same-sex couples face in Tennessee’s legal environment.

Ready to explore your options?

Contact us today to connect with agencies experienced in LGBT surrogacy who can help you understand whether Tennessee is right for your family-building journey. With proper planning and experienced guidance, LGBT couples can successfully build their families through surrogacy in Tennessee, despite the legal complexities involved.