                         IN THE COURT OF APPEALS OF TENNESSEE
                                      AT JACKSON


ELIZABETH ELLEN SORREL,                    )
                                           )
                Plaintiff/Appellee,        ) Shelby Juvenile No. H331
                                           )
                                           ) Appeal No. 02A01-9609-JV-00212

VS.
                                           )
                                           )
                                           )
                                                                      FILED
LARRY AUBREY HENSON,                       )                          December 18, 1998
                                           )
                Defendant/Appellant.   )                              Cecil Crowson, Jr.
                                                                      Appe llate Court C lerk


                     APPEAL FROMTHE JUVENILE COUR OF SHELBY C
                                                 T           OUNTY
                                 AT MEMPH TENNESSEE
                                          IS,
                          THE HONORABLE KENNETH TURNER, JUDGE



HAL ROUNDS
Mem  phis, Tennessee
Attorney for Appellant

JOHN KNOX WALKUP
Attorney General & Reporter
KIMBERLY M. FRAYN
Assistant Attorney General
Nashville, Tennessee
Attorney for State of Tennessee




AFFIRMED




                                                            ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
        Larry Aubrey Henson (Henson) appeals the trial court’s order establishing Henson’s paternity of

ElizabethSorrell’s child, Alexander. Inthisappeal, we address whether Tennessee’s paternity statutes1 violate

the Fourteenth Amendment to the United States Constitution. For the reasons hereafter stated, we find no

such violation, and we affirm the trial court’s judgment.



                                   Facts and Procedural History



        On January 23, 1996, Sorrell filed a petition seeking to establish Henson’s paternity as to Sorrell’s

unborn child. The petition further sought, among other things, child support payments. A summ was
                                                                                             ons

served upon Henson on February 2, 1996, which commanded him to appear before the juvenile court on

February 7, 1996. On February 6, 1996, Henson filed an answer denying paternity. Thereafter, onFebruary

7, 1996, Henson voluntarily appeared before the juvenile court and requested that blood tests be performed.

Accordingly, the juvenile court ordered “that all parties submit to blood tests,” and ordered “that the case be

continued.”



        The child, Alexander, was born on March 11, 1996, and subsequent blood tests revealed “the

probability of [Henson’s] paternity is 99.95%, as compared to an unrelated, untested random man of the same

race.” The matter was againbrought beforethejuvenile court onJune11, 1996. At the June hearing, Henson

did not offer any proof to contest paternity. However, Henson apparentlyorally moved to dism thepetition
                                                                                            iss

filed against him. This motion is evidenced solely by the following exchange, which is excerpted from the

hearing’s transcript and which sets forth the substance of and grounds for Henson’s oral motion:

        THE C  OUR ---- (Indiscernible) based upon what reason?
                    T:
        RESPONDENT HENSON: Based upon the fact that . . . wom have a fundam
                                                                         en              ental right to
        reject parenthood after conception, first w abortion and then with adoption. The State
                                                       ith
        denies a man’s [sic] his right that he -- that it offers a wom -- the Fourteenth Am
                                                                      an                   endm   ent.

Stated otherwise, Henson asserted that paternity actions under Tennessee law were unconstitutional based

upon violation of Henson’s Fourteenth Amendment rights.



        Subsequently, the juvenile court implicitly denied Henson’s motion to dismiss by entering an order


1. During the course of the trial court’s proceedings, Tennessee paternity actions were governed by
Tennessee Code Annotated, Title 36, Chapter 2, Part 1. See Tenn. Code Ann. §§ 36-2-101 et seq. (1996).
This Part, how ever, w as repe aled by A cts 1997, ch. 477 § 1, and paternity actions are now go verned by Part
3 of Title 36, C hapter 2 . See Tenn. Code Ann. §§ 36-2-301 et seq. (Supp. 1998).

                                                       2
establishing Henson’spaternity of Alexander anddirecting thepayment of child support. The order further set

forthvisitation and established that Henson would be responsible for one-half of any medical expenses relating

to Alexander, including health insurance premiums and any out-of-pocket medical expenses not covered by

insurance. Thereafter, Henson appealed the trial court’s denial of his motion to dismiss.



         Before proceedingwith further analysis of thiscase, we notethat theonly issue raised on appeal that

was also raised in the trial court is the alleged violation of the Fourteenth Amendm but that Henson raises
                                                                                    ent,

additional constitutional issues in his brief. Any such additional issues, however, are waived based upon

Henson’s failure toraise thembeforethetrial court. See Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. App.

1991). Similarly, we note that Henson has challenged the constitutional validity of a specific provision of the

paternity statutes that previously required the father to pay the maternal costs of the mother.2 This issue

likewise was not raised before the trial court and is waived.



                                                    Analysis



         Section one of the Fourteenth Amendm to the United States Constitution provides the following:
                                             ent

         No state shall make or enforce any law which shall abridge the privileges or imm           unities of
         citizens of the United States; nor shall any state deprive any person of life, liberty, or property,
         without due process of law; nor deny to any person within its jurisdiction the equal protection
         of the laws.

U.S. Const. amend. XIV, § 1.

                                      A. Substantive Due Process

         Although a literal reading of [the Due Process Clause of the Fourteenth Amendment] might
         suggest that it governs only the procedures by which a State may deprive persons of liberty,
         . . . the Clausehas been understood tocontain a substantive component as well, one “barring
         certain government actions regardless of the fairness of the procedures used to implement
         them.” . . . . “Thus all fundamental rights comprised within the term liberty are protected by
         the Federal C   onstitution frominvasion by the States.”

Planned Parenthood v. Casey, 505 U.S. 833, 846-47 (1992) (citations omitted). The United States Supreme

Court has recognized, “O law affords constitutional protection to personal decisions relating to marriage,
                        ur



2. During the course of the trial court’s proceedings, Tennessee Code Annotated se ction 36-2-108
established that o rder s of p atern ity an d sup port “ sha ll also provide for the payment of the necessary expenses
incurred by or for the mother in connection with the mother’s confinement and recovery.” Tenn. Code Ann.
§ 36-2-108 (1996). This statute has since been repealed by Acts 1997, ch. 477 § 1, and Tennessee’s current
paternity statutes establish that orders of parentage shall include a “[d]etermination of the liability for a
mot her’s reasonable expens es for her pregnancy, confinem ent and recovery to either or both parties.” Tenn.
Code Ann. § 36-2-3 11(a)(13) (Supp. 1998) (em phasis added).

                                                          3
procreation, contraception, family relationships, child rearing and education.” Id. at 851. The Court has further

recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion

intomatters so fundamentally affectinga personas the decisionwhether to bear orbeget a child.” Id. (quoting

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)). These rights are grounded in the concept of liberty and have

often been collectively referred to as a right to privacy. See Id. The validity of a state law that abridges any

such right is generally determined based upon whether the law in question is necessary to advance a

compelling state interest. Generally, if the abridged right is fundamental to the concept of liberty and the law

abridging the right is not necessary to advance a compellingstate interest, then the lawviolates the Fourteenth

Amendment’s substantive due process guarantees. The substantive component of the Due Process Clause

of the Fourteenth Amendment is violated only in instances wherein a person’s liberty has been abridged by

state law. If state law has not abridged any such right, then the Fourteenth Amendment’s substantive due

process guarantees have not been violated.



        In the present case, Henson argues that Alexander was born without Henson’s consent3 and that the

juvenile court’simpositionof support obligations isnull and voidbecause Tennessee’s paternitystatutes violate

Henson’s procreational autonomy. Essentially, Henson’s assertion that Alexander was born without his

consent amountsto a contention that Henson did not deliberately father a child. Admittedly, Henson engaged

in sexual relations with Sorrell, and he does not contest that he is the biological father.



        Our own Tennessee Supreme Court has stated, “the right of procreational autonomy is composed of

two rights of equal significance -- the right toprocreateand the right to avoid procreation.” Davis v. Davis, 842

S.W 588 (Tenn. 1992). Procreational autonomy, however, is irrelevant to paternity actions. See Hughes
   .2d

v. Hutt, 455 A.2d 623, 624 (Penn. 1983). Tennessee paternity actions donot abridge one’s right to determine

whether to procreate, but involve cases where procreation has resulted from the private acts of the

biological parents.


3. In a separate related case that is also before this Court, Henson introduced evidence relating to, among
other things, claim s of misre presen tation as to S orrell’s use of contrac eptive m easure s. See Henson v.
Sorr ell, No. 02A01-9711-CV-00291 However, in this case, the factual assertions made by Henson in his brief
that relate Sorrell’s alleged misrepresentations are not supported by any evidence in the record. Rule 6 of
the Rules of the Court of Appeals expressly establishes, "[n]o assertion of fact will be considered on appeal
unless the argument upon such assertion contains a reference to the page or pages of the record where
evidence of such fact is reco rded." R. C T . A PPEALS 6. See also State v. Draper, 800 S.W.2d 489, 493 (Tenn.
Crim. App. 1990) (allegations in pleadings are not evidence). Because facts asserted by Henson in his brief
are not supp orted by any ev idence in the reco rd on ap peal in this ca se, we w ill not consider any such
additional facts in reviewing this case.

                                                       4
        Though we note that the specific constitutional challenge presented to this court is an issue of first

impression in this jurisdiction, other jurisdictions have addressed similar constitutional challenges in paternity

actions and have consistently concluded that paternity actions brought against a putative father w did not
                                                                                                  ho

consent to childbirth do not violate the father’s right to procreational autonom For example, in L. Pam
                                                                                y.                     ela

P. v. Frank S., 449 N.E.2d 713 (N.Y. 1983), a paternity suit was brought against a putative father by a mother

who had deliberately misrepresented her use of contraception. 449 N.E.2d at 714. The father asserted that

the paternity suit, with its imposition of a support obligation, constituted state infringement upon his

constitutional right to decide whether to father a child. Id. at 715. The court, however, reasoned the following:

          Clearly, [the father] has a constitutionally protected right to decide for himself whether to
        father a child. This right is deemed so fundamental that governmental interference in
        this area of decision-making may be justified only by com     pelling State interests. . . . . This
        aspect of the right to privacy has never been extended so far as to regulate the conduct of
        private actors as between them      selves. . . . .
          [The father seeks to] be relieved of his obligation to support a child he did not [deliberately]
        have. But [the father’s] constitutional entitlement to avoid procreation does not encompass
        a right to avoid a child support obligation simply because another private person has not fully
        respected his desires in this regard. However unfairly [the father] may have been treated by
        [the mother’s] failure to allow him an equal voice in the decision to conceive a child, such a
        wrong does not rise to the level of a constitutional violation.

Id. at 715-16 (emphasis added) (citations omitted).


        Other related cases from other jurisdictions have generally dealt with instances wherein either the

mother misrepresented to the putative father that she waspracticingbirthcontrol, or theputative father offered

to pay for an abortion. Each such case, however, supports the conclusion that paternity actions do not deprive

a putative father of his Fourteenth Amendment right to procreational autonomy simply because he did not

“consent” to childbirth. See Beard v. Skipper, 451 N.W.2d 614, 615 (Mich. App. 1990) (quoting L. Pamela P.

and holding, “We see no reason why Michigan should decide this issue differently”); Faske v. Bonanno, 357

N.W.2d 860, 861 (Mich. App. 1984); Linda D. v. Fritz C., 687 P.2d 223, 228 (Wash. App. 1984) (citing L.

PamelaP. and holding that the constitutionally protected right of privacy does not “encompass the right of one

parent to avoid a child support obligation where the other parent’s choice regarding procreation is not fully

respected”). See also Erwin L.D. v. Myla Jean L., 847 S.W 45, 47 (Ark. App. 1993).
                                                         .2d



        Consistent L. Pamela P. and other similar cases, we find that Tennessee paternity actions do not

abridge a putative father’s right to procreational autonomy, because such actions do not interfere w the
                                                                                                    ith

determination of whether to father a child. Any private wrong or other such unfair treatm that previously
                                                                                         ent



                                                        5
interfered with a man’s procreational autonomy “does not rise to the level of a constitutional violation.” 449

N.E.2d at 716. Accordingly, we hold that Tennessee’s paternity statutes do not violate the Fourteenth

Amendment’s right to privacy.



                                           B. Equal Protection

        Hensonalso contendsthat Tennessee paternityactions violate the equal protection guarantees of the

Fourteenth Amendment by discriminating by gender. Henson argues in part that, while wom have the
                                                                                       en

“statutory” right toabortion after conception and during pregnancy, men are denied any similar opportunity to

avoid the legal obligations and responsibilities of parenthood after conception.4

        While it is true that after conception a woman has more control than a man over the decision
        whether to bear a child, and may unilaterally refuse to obtain an abortion, those facts were
        known to the father at the tim of conception. The choice available to a woman vests in her
                                        e
        by the fact that she, and not the man, must carry the child and must undergo whatever
        traumas, physical and mental, m be attendant to either childbirth or abortion. Any
                                              ay
        differing treatment accorded men and women . . . is owed not to the
        operation of [state law] but to the operation of nature.

Ince v. Bates, 558 P.2d 1253, 1254 (Or. App. 1977). As evidenced from the foregoing text, Henson’s

characterization of the woman’s right to abortion as stemming from “statutory” authority is incorrect. The

differing treatm accorded m and wom after conceptionand duringpregnancydoesnot stemfromstate
                ent        en      en

law, but fromthe operationof nature, i.e. biology, andfromthewoman’s uniqueconstitutionallyprotectedright

to choose either childbirth or abortion.



        Moreover, under Tennessee law, the duty to support a child falls upon both biological parents, and

thisduty extends to bothparents regardless of their marital status. See Tenn. Code Ann. § 34-11-102(1996).

Any contrary approach under state law would actually serve to violate the Fourteenth Amendment’s Equal

Protection Clause, because illegitimate children have the same right to support as do legitimate children.

Gomez v. Perez, 409 U.S. 535 (1973).



        Lastly, discriminatory classifications between genders under statelawarepermissibleif substantially


4. Henson also argues that men are denied the same opportunity to avoid the legal responsibilities of
parenthood that is afforded to women via adoption. This argument assumes, however, that men do not have
the same ability under Tennessee law to compel or prohibit adoption. This assumption is incorrect because
the relevant c onsen t provision s of Ten nesse e’s adop tion statutes require the conse nt of both parents, except
in certa in approp riate narro wly define d instanc es. See Tenn. Code Ann. § 36-1-1 17. Cf. Bryant v. Hacker,
689 N.E.2d 609, 611 (Oh io App. 19 96). The refore, ne ither the m other no r the father h as a un ique ability to
force an adoption, and both parents possess the ability to prevent an adoption. Accordingly, this argument
is without m erit.

                                                        6
related to achieving an important governmental objective. Craig v. Boren, 429U.S. 190(1976). Tennessee’s

interest in ensuring that children receive adequate support is such an important governmental objective, and

the imposition of support obligations upon biological fathers, including married or unmarried fathers, is

substantially related to the achievem of this objective. See C.F.B. v. P.D.G., 651 P.2d 1213, 1216 (Col.
                                     ent

1982). Cf. Hur v. Virginia Dept. of Social Services, 409 S.E.2d 454 (Va. App. 1991) (concluding that the

requirement that all fathers pay child support, regardlessof whether they were“willingand intentional fathers,”

is related to the compelling governmental interest of preserving the welfare of children). Accordingly, any

discriminatory effect is constitutionally permissible, and Tennessee’s paternity statutes do not violate the

Fourteenth Amendment’s right toequal protection. Seealso Bryant v. Hacker, 689 N.E.2d 609, 611 (Ohio App.

1996); Harris v. Alabama, 356 So.2d 623, 624 (Ala. 1978); Dorsey v. English, 390 A.2d 1133, 1138 (Md. App.

1978); D.W.L. v. M.J.B.C., 601 S.W 475, 478 (Tex. App. 1980).
                                  .2d



                                               Conclusion



        Based upon the foregoing, we affirm the trial court’s judgment. Costs of this appeal are taxed to

Henson, for which execution may issue if necessary.




                                                                            HIGHERS, J.



CONCUR:



CRAWFORD, P.J., W.S.




LILLARD, J.




                                                      7
