                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  April 24, 2014 Session

      IN RE: THE ADOPTION OF MALE CHILD A. F. C. BY: C. M. C.
                     AND D. F. C., AND J. L. B.

               Appeal from the Chancery Court for Rutherford County
            No. 12CV1059, 12CV1097     Robert E. Corlew, III, Chancellor




                  No. M2013-00583-COA-R3-CV - Filed July 16, 2014


Parents of a child born of a surrogate mother with an anonymously donated egg and the
father’s sperm and Tennessee Department of Health appeal order entered in consolidated
parentage and adoption proceedings which required the live birth certificate issued for the
child to list the mother as “unknown.” Having determined that the definition of “mother” for
the purpose of completing the birth certificate is the same as that used in preparing the
standard birth certificate promulgated by the National Center for Health Statistics, we reverse
the trial court’s decision and hold that the gestational carrier should be listed as the mother.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in
                             Part and Affirmed in Part

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which A NDY D. B ENNETT, J.,
and L ARRY B ART S TANLEY, S P. J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Sara E. Sedgwick, Senior Counsel; Nashville, Tennessee, for the appellant, Tennessee
Department of Health.

Julie J. Tate, Brentwood, Tennessee, for the appellees, John Doe and Jane Doe.

                                          OPINION

I. F ACTUAL & P ROCEDURAL H ISTORY

        This case presents the question of who should be listed as mother on the birth
certificate of a child born through surrogacy. A married couple, C.M.C. (“Intended Mother”)
and D.F.C. (“Father”), entered into a surrogacy agreement with J.L.B. and her husband, D.B.,
whereby J.L.B. would carry and give birth to a child on behalf of Intended Mother and
Father. Per their agreement, Intended Mother and Father obtained an egg from an
anonymous, surrogate egg donor; the egg was fertilized in vitro with Father’s sperm, and the
fertilized egg was implanted in J.L.B.’s uterus. The process was successful, and a child,
A.F.C. (the “Child”), was born.

        One day before A.F.C.’s birth, Father and Intended Mother filed a Petition for
Declaration of Parentage in Rutherford County Chancery Court (“Parentage Proceeding”),
seeking a declaration that: (1) Father is the genetic and legal father of the Child; (2) J.L.B.’s
husband is not the father; (3) J.L.B. is not the genetic or legal mother; (4) and J.L.B. “should
not be identified as the Mother of the baby on the baby’s birth certificate.” The court entered
an Order of Parentage on August 1 holding that Father was the legal father and Intended
Mother was the “legal mother” of the Child; that “any hospital or other agency is authorized
to rely upon this Order” to “generate, alter, or amend such documents” to reflect that the
Intended Mother is the mother of the child; and that “[i]n the event that any policy, practice,
or procedure . . . precludes [the] hospital or agency from identifying [Intended Mother] as
the mother of the Child” then the mother should be listed as “unknown or unidentified.”

       In a separate action also filed in Rutherford County Chancery Court, Father, Intended
Mother, and J.L.B. filed a Petition for Adoption by a Related Parent (the “Adoption
Proceeding”); the court entered a final decree of adoption declaring Child to be the adopted
child of Intended Mother.

        The Tennessee Department of Health (the “Department”) filed a motion to intervene
in the Parentage Proceeding; the Department also sought to alter, amend, or set aside portions
of the Order of Parentage. The Department asserted that J.L.B.’s name should be placed on
the original birth certificate and that Intended Mother’s name could only be placed on a new
birth certificate after she had obtained an Order of Adoption through a stepparent adoption
procedure. Father and Intended Mother responded, stating that they did not oppose the
Department intervening in the matter but requesting that the Department’s motion to set aside
the Order of Parentage be denied.

      The Department also filed a motion to intervene in the Adoption Proceeding and
sought to alter, amend, or set aside the Final Decree of Adoption. The Department also
moved to consolidate the Adoption Proceeding with the Parentage Proceeding.

        In an order entered January 28, 2013, the court consolidated the adoption and
parentage proceedings, permitted the Department to intervene in both cases, and ordered the
Department to “issue an original birth certificate . . . showing his mother as ‘unknown’ in the
place for listing the mother”; the court also ordered the Department to issue a new certificate
of birth by adoption which would identify Intended Mother as Child’s mother. Intended
Parents and the Department both appeal from the trial court’s holding.


                                               2
II. I SSUES ON A PPEAL

      We begin with a clarification of the issues that are appropriately before this Court.
The Department raises the following issue:

       Whether the original birth certificate for a child born as a result of a gestational
       surrogacy agreement using the husband’s sperm and an anonymous donor egg
       should list the gestational surrogate as the mother, or whether it should instead
       list the mother as “unknown.”

Intended Parents articulate the following issue:

       Who is the legal mother of a child conceived with an anonymously donated
       egg and carried by a gestational carrier for the benefit of the child’s genetic
       father and his wife who arranged for the child and conceived him with the
       intention to be his parents?

       As we consider the issues presented, we are mindful of the instruction set forth in In
re C.K.G. to decide cases such as this on “particularly narrow grounds” given their
“inherently policy-laden and . . . administratively and fiscally momentous” nature. In re
C.K.G., 173 S.W.3d 714, 726–27 (Tenn. 2005). For the reasons set forth below, we are of
the opinion that the issue presented by Intended Parents is not proper for resolution.

       In the Order of Parentage the court held, inter alia, that Intended Mother met one of
three “indicia of motherhood” and on that basis was the “legal mother” of the Child.1 The


       1
        In so ruling, the court applied factors derived from In re C.K.G., which it called “indicia of
motherhood” and held:

       3.      That the indicia of motherhood, as set forth in In re C.K.G., . . . include: genetic
               parenthood of the child or child[ren], gestation of the child or child[ren], and the
               intention of to be the mother of the child or child[ren];
       4.      That [J.L.B.] meets only one of the indicia of motherhood – gestation – but that she
               meets the indicia only because she has gestated this child for another couple, with
               no intention to be the mother of the child;
       5.      That no other woman (besides [Intended Mother]) seeks to have maternal rights to
               the child to whom [J.L.B.] will soon give birth nor does any other woman seek to
               be identified as the baby’s mother on the birth certificate;
       6.      That, despite giving birth to this child, [J.L.B.] is not the mother of this child and
               does not have the rights, responsibilities, or obligations of a parent-child
               relationship with the child and has no obligation to be named as the mother of this
               child on the child’s birth certificate;

                                                                                   (continued)

                                                    3
order stated that a hospital or other agency could rely on the order to generate documents
indicating that fact, and that if Intended Mother could not be listed as the mother, then the
mother should be listed as “unknown.” The Department of Health thereafter intervened in
the proceeding and moved the court as follows:

       [T]o alter or amend or to set aside that portion of the Order that finds that the
       non-genetic, non-gestational intended mother [C.M.C.] is the legal mother and
       authorizes the Department to register the birth either by placing the intended
       mother’s name on the original birth certificate, along with the biological
       father’s name, as the child’s legal parents or, in the alternative, by identifying
       the mother as “unknown” or “unidentified” rather than by identifying the birth
       mother, [J.L.B.], as the child’s legal mother on the original birth certificate.

        The court granted the motion in part, modifying the portions of the order which
addressed the issuance of a birth certificate for the child; the court did not modify the portion
of the order holding Intended Mother to be the “legal mother” of the child. The order stated
in pertinent part:

       Pursuant to the Court’s findings of fact and conclusions of law, the Tennessee
       Department of Health shall not list the name of the surrogate/gestational
       carrier, J.L.B. (who has no biological relationship to the child) as the mother
       on the original birth certificate, nor shall the Department list the name of the
       intended/adoptive mother, C.M.C., in the place for listing the mother on the
       original birth certificate. Instead, the Tennessee Department of Health shall
       issue an original birth certificate . . . showing his mother as “unknown” in the
       place for listing the mother.

The Department appeals the ruling that the birth certificate should show the mother as
“unknown”; the Department does not challenge the court’s ruling that Intended Mother is the
“legal mother.”

        Intended Parents contend that the trial court erred in not ordering that Intended Mother
be listed on the birth certificate as the mother. They argue that, in the absence of a statute



              (continued)

       7.     That [Intended Mother] does meet one of the indicia of maternity (intention to be
              the child’s parent) with no reservation or factual situation which would mitigate
              against a finding that [Intended Mother] is not the child’s mother;
       8.     That, having met this indicia of motherhood, [Intended Mother], is the legal mother
              of the child to whom [J.L.B.] will soon give birth.

                                                  4
defining who is the “legal mother” of a child “conceived with a donated egg and carried by
a gestational carrier for the benefit of a married couple,” this court should craft a principle
of law by which Intended Mother would be the “legal mother” for all purposes, including the
right to be listed on the birth certificate. In their brief, Intended Parents express the concern
relating to “potential problems which may arise” if the issue they present is not resolved. We
are of the opinion, however, that the lack of challenge to the declaration in the Order of
Parentage that Intended Mother is the “legal mother,” together with our disposition of the
Department’s appeal, effectively addresses the concerns raised by Intended Parents on the
record presented.

        A birth certificate provides “prima facie evidence of the facts stated” therein, see
Tenn. Code Ann. § 68-3-202; however, the names listed thereon are not a finding of
parentage nor do they create or terminate parental rights.2 The determination of who should
be listed as the mother on the birth certificate is independent of the determination of who is
the “legal mother.” In this case, the ruling in the Order of Parentage that Intended Mother
is the “legal mother” has not been challenged, only its ruling that the birth certificate be
issued showing the mother as “unknown.” Consequently, to the extent Intended Parents
sought a declaration that Intended Mother is the “legal mother”, they have effectively
received the relief that they sought in both proceedings.

       Such an important and consequential issue as the one raised by Intended Parents
should be left for determination in a case that presents an actual, ongoing controversy, or, as
noted in In re C.K.G., should be resolved by the legislature. In re C.K.G., 173 S.W.3d at 730.
The legal and policy concerns presented are well beyond the narrow grounds upon which
precedent dictates we decide this case. Id. at 726-727.

       Therefore, the question that is appropriately before this Court is who should be listed
as the child’s mother on the certificate of live birth—Intended Mother, J.L.B., or the
unknown egg donor?

III. A NALYSIS

      In resolving this appeal, we employ the principles of statutory construction, the
primary rule of which is “to ascertain and give effect to the intention and purpose of the


        2
          For example, where a child is born to an unmarried couple, the biological father’s execution of a
voluntary acknowledgment of paternity pursuant to Tenn. Code Ann. § 24-7-113 constitutes a “legal finding
of paternity.” Once the sworn acknowledgment is signed by the mother and the biological father of the child
and the form is submitted to the office of vital records, then the biological father’s name may be “entered
in the spaces provided on the birth certificate.” Tenn. Code Ann. § 68-3-305(b)(2)(A). Thus, it is the
voluntary acknowledgment of paternity that is legally operable, not the child’s birth certificate.

                                                    5
legislature.” LensCrafters, Inc. v. Sundquist, 33 S.W.3d 772, 777 (Tenn. 2000); Carson
Creek Vacation Resorts, Inc. v. Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993); Exxonmobil
Oil Corp. v. Metro. Gov’t. of Nashville and Davidson County, 246 S.W.3d 31, 35 (Tenn. Ct.
App. 2005); McGee v. Best, 106 S.W.3d 48, 64 (Tenn. Ct. App. 2002). To determine
legislative intent or purpose, we look to the natural and ordinary meaning of the language
used in the statute itself and examine each provision within the context of the entire statute
and in light of its over-arching purpose and the goals it serves. State v. Flemming, 19 S.W.3d
195, 197 (Tenn. 2000); Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996); Exxonmobil,
246 S.W.3d at 35; T.R. Mills Contractors, Inc. v. WRH Enterprises, LLC, 93 S.W.3d 861,
867 (Tenn. Ct. App. 2002). Construction of a statute is also a question of law which
appellate courts review de novo, without a presumption of correctness of the trial court’s
findings. Barge v. Sadler, 70 S.W.3d 683, 686 (Tenn. 2002); Hill v. City of Germantown,
31 S.W.3d 234, 237 (Tenn. 2000); Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d
799, 802 (Tenn. 2000); Exxonmobil, 246 S.W.3d at 35.

       The Vital Records Act of 1977 (the “Act”) is codified as Chapter 3 of Title 68.
Pursuant to Tenn. Code Ann. § 68-3-103, the Tennessee Department of Health is charged
with the responsibility of, inter alia, developing regulations “necessary for the creation and
efficient performance of an adequate system of vital records, and give instructions and
prescribe forms for collecting, transcribing, compiling and preserving vital records.” Tenn.
Code Ann. § 68-3-103(2). The information collected on the records is to be “such as will aid
the public health of the state.” Tenn. Code Ann. § 68-3-201.

        The Act requires that a certificate of birth be filed with the office of vital records for
every live birth in Tennessee. Tenn. Code Ann. § 68-3-301. The Act does not define
“mother” for use in completing the birth certificate and does not prescribe the information
that is to be included on a certificate of live birth; rather the Act states:

       In order to promote and maintain nationwide uniformity in the system of vital
       records, the forms of certificates, reports and other returns required by this
       chapter, or by regulations adopted under this chapter, shall include, as a
       minimum, the items recommended by the federal agency responsible for
       national vital statistics.

Tenn. Code Ann. § 68-3-202(a). In this regard, 42 U.S.C.A. § 242k establishes the National
Center for Health Statistics (the “Center”) and directs the Secretary of Health and Human
Services to act through the Center “for the purpose of improving the effectiveness,
efficiency, and quality of health services in the United States.” 42 U.S.C.A. § 242k (a). “To
assist in carrying out this section,” the Secretary must “cooperate and consult with [...] State
and local health departments and agencies.” 42 U.S.C.A. § 242k(f). In order to “secure
uniformity in the registration and collection of mortality, morbidity, and other health data,”

                                                6
it is the Secretary’s responsibility to “prepare and distribute suitable and necessary forms for
the collection and compilation of such data.” 42 U.S.C.A. § 242k(g).

        The Center has promulgated a U.S. Standard Certificate of Live Birth (the “standard
certificate”). See Nichols Cyclopedia of Legal Forms Annotated § 172:13. In addition to
recording the names of the parents and child, the standard certificate includes detailed
medical information regarding the mother’s pregnancy, including the date of her first and last
prenatal care visits and the number of total visits; height; prepregnancy weight and weight
at delivery; whether she received food assistance; number of previous births, pregnancies,
and the outcomes of those events; whether she smoked cigarettes before and/or during the
pregnancy; and the date of her last menses. The form includes detailed information about
the birth itself, including risk factors of the pregnancy; obstetric procedures; infections
present and/or treated during the pregnancy; onset of labor; characteristics of labor and
delivery; method of delivery; and maternal morbidity. Finally, it includes information
regarding the newborn. The guide to completing the birth certificate advises that “[a]ll
information on the mother should be for the woman who gave birth to, or delivered the
infant.” 3

        As we consider the intent of and purpose served by the Act, we have determined that
the “mother” to be entered on the certificate of live birth required by Tenn. Code Ann. § 68-3-
301 is the same as that used in preparing the standard certificate, i.e., the woman who delivers
the child. The purpose of the Act, in the broadest sense, is to aid the public health of the state;
to that end, the Act aims “to promote and maintain nationwide uniformity in the system of
vital records” by mandating that birth certificates reflect the recommendations of the Center.
Similarly, the goal of 42 U.S.C.A. § 242k is to improve health services in the United States.
Using the same definition of mother enables the state and federal governments to collaborate
in pursuit of their respective goals.

       Construing the Act in this fashion is also consistent with the definition of “live birth”
at Tenn. Code Ann. § 68-3-102:

         (10) “Live birth” means the complete expulsion or extraction from its mother
         of a product of human conception, irrespective of the duration of the pregnancy,
         that, after expulsion or extraction, breathes or shows any other evidence of life,
         such as beating of the heart, pulsation of the umbilical cord, or definite
         movement of voluntary muscles, whether or not the umbilical cord has been cut
         or the placenta is attached. Heartbeats shall be distinguished from transient


         3
           The Center also prepared a “Guide to Completing The Facility W orksheets for the Certificate of Live Birth
and Report of Fetal Death,” which provides guidance to facilities in completing “the facility worksheets for the revised
Certificate of Live Birth.” See www.cdc.gov/nchs/data/dvs/guidetocompletefacilitywks.pdf.

                                                           7
       cardiac contractions, and respirations shall be distinguished from fleeting
       respiratory efforts or gasps;

Tenn. Code Ann. § 68-3-102 (emphasis added). Thus, “mother” as used in the Act is the
woman who produced the “live birth.”

IV. C ONCLUSION

        For the foregoing reasons, the judgment of the Chancery Court prohibiting the
Department from listing J.L.B. as mother on the original birth certificate and to list the mother
as “unknown” is reversed and the Department is directed to issue an original birth certificate
listing J.L.B. as mother; in all other respects the judgment is affirmed.




                                                   ________________________________
                                                   RICHARD H. DINKINS, JUDGE




                                               8
