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On 9 February 2017, state Rep. Terri Lynn Weaver introduced HB1406 to the Tennessee House of Representatives. This exceptionally concise bill repeals Section 68-3-306 of the Tennessee Code Annotated (the state law) and is summarized on the Tennessee General Assembly web site: TCA Section 68-3-306, the law Weaver’s bill seeks to repeal, was introduced with the express purpose of giving legal recognition to children conceived through artificial insemination: From a fact-checking standpoint, this would seem like a pretty open-and-shut case, as she is literally repealing a bill that defines the legitimacy of children born from artificial insemination. Weaver, however, contends in a Facebook post that the bill is simply a housekeeping procedure aimed at removing a law rendered unconstitutional by Obergefell v. Hodges, the Supreme Court ruling legalizing same-sex marriage, and that an existing law already protects the legitimacy of children born through in vitro fertilization: The lawsuit Weaver cites concerns a custody dispute over an child born from artificial insemination in a divorce proceeding between two women. Lawyers for the woman who did not conceive the child argued in an appeal to a ruling denying her parental rights that TCA 63-3-306 provided the non-conceiving spouse with parental rights as they were married when the baby was conceived. There was a dispute, however, over how this law — with gendered spousal terms — could be applied to same sex couples, a question the state's attorney general was asked to weigh in on. During an appeal in this case, Weaver had signed on to a memorandum asking the court not to interpret 68-3-206 for same-sex couples, leading many critics to suggest this new bill was a thinly veiled attack on same-sex marriage and not, as she argued, to get rid of a law deemed unconstitutional. This suspicion was further confirmed, in those critics eyes, by her Facebook explanation, which is based on the legally dubious argument that the law is not constitutional. Her explanation that TCA 63-3-306 is unconstitutional, in actuality, relies on a fairly significant misreading of both the attorney general’s brief regarding that law, as well as the other statute she contends will continue to legally declare the legitimacy of in vitro children. First of all, contrary to the claim made by Weaver, the brief filed by the Tennessee attorney general (which she referenced in her Facebook post) actually ruled that TCA 36-2-304 remains constitutional, provided it be construed as applying to both heterosexual and same-sex couples. At issue was this law’s gendered use of the words husband and wife as opposed to the word spouse as used in the 2015 Obergefell v. Hodges Supreme Court ruling, and described in the brief: Attorney General Herbert H. Slatery went on to argue in this brief, however, that the code should not be construed literally, arguing that the courts have the power and duty to make sure laws exist to fit within constitutional requirements: Therefore her argument for the utility of a bill in the first place, as presented on Facebook, is rooted in the false premise that the code she is seeking to repeal (by the standards of the Attorney General’s office) needs to be repealed on the basis of its unconstitutionality. It also means her assertion that HB 1406 does not apply to same sex marriages at all!!!! is demonstrably false. Secondly, Weaver goes on to argue that another code, TCA 36-2-304, already serves to define the parentage of a child born through artificial insemination. That law, like 68-3-306, also uses the terms husband and wife, making a literally construed interpretation of this code just as theoretically (but not actually, in the view of the Attorney General’s office) problematic as the former. This law, more generally, codifies the legal presumption of parentage: A joint statement from Weaver and the Tennessee senator sponsoring the Senate version of the bill makes the argument that this existing law will serve the same role as the law being repealed: However, critics argue that the existing law does nothing to define the legitimacy or parentage of a child born to same sex couples through artificial insemination, potentially providing a legal environment that limits the rights of the non-biologic partner in a same-sex marriage or relationship jointly raising an IVF-conceived child while, arguably, making that child illegitimate in the eyes of Tennessee State Law. The bill is currently being reviewed by the Tennessee House health subcommittee.
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