Opinion
01-24-2024
Sasha Crystal DAVIS v. Kaitlyn REILLY
Circuit Court for Sevier County, No. 21-CV-495-II
ORDER
PER CURIAM
This extraordinary appeal under Tennessee Rule of Appellate Procedure 10 arises from a trial court’s order relying on the artificial insemination statute, Tennessee Code Annotated section 68-3-306 (2023), to establish parentage of a child born to a married same-sex couple but conceived through sexual intercourse with a third party. The artificial insemination statute provides that "[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" both spouses. Id. We grant the application for review under Rule 10 and dispense with filing the record and with additional briefing and oral argument. Tenn. R. App. P. 10(a), (d). As explained more fully below, we hold that the artificial insemination statute does not provide a legal basis for establishing parentage in these particular circumstances. We therefore vacate the trial court’s decision and remand this matter to the trial court for further proceedings.
BACKGROUND
Sasha Crystal Davis and Kaitlyn Reilly are a same-sex couple who married on January 10, 2014. After marrying, Davis and Reilly decided to have a child together through artificial insemination. They engaged the services of a California facility, which provided artificial insemination kits via mail. The couple agreed Reilly would serve as the biological birth parent, but Davis was also very involved in the process. For example, the couple used trait matching to select a donor with physical traits similar to Davis, and Davis assisted Reilly with each artificial insemination.
Reilly had difficulty conceiving and began fertility drugs about a year into the process. Eventually, after two years and tens of thousands of dollars, Reilly became pregnant and gave birth to H.R.W.R. on February 9, 2016. Reilly and Davis both were listed as parents on H.R.W.R.’s birth certificate, and H.R.W.R.’s parentage is not disputed.
The couple soon discussed having a second child. By early 2017, however, they began experiencing marital problems. Reilly was upset about Davis’s work schedule and believed Davis was having an affair with a co-worker. In April 2017, Reilly started a relationship with John Dylan Wilde, whom she met through a dating app. For the next several months, Reilly and Wilde saw each other once or twice weekly and had unprotected sexual intercourse, either in their vehicles or at Wilde’s parents’ home. This arrangement continued until September 2017, when Reilly learned she was pregnant and immediately broke off her relationship with Wilde.
Reilly told Davis about the pregnancy but did not tell her how the child was conceived or the identity of the father. Davis never asked questions about those details. During the pregnancy, Reilly and Davis held themselves out to friends and family as parents of the unborn child. They jointly hosted a gender reveal party and a baby shower. Davis’s family attended and participated in both events.
Reilly gave birth to H.J.R. on May 1, 2018. Because of complications during delivery, Reilly remained in the hospital for several weeks. She was sedated and not fully coherent for much of that time. Davis was present at the child’s birth. Davis and Reilly dispute whether Davis was in Reilly’s hospital room when hospital personnel brought by the forms needed for the birth certificate, but it. is undisputed that Davis was not listed as a parent on H.J.R.’s birth certificate. Davis learned almost immediately that her name was not listed on the birth certificate. She discussed this omission with Reilly but never asked hospital personnel to add her name or took any other steps to be included on the birth certificate.
For approximately three years following H.J.R.’s birth, Davis and Reilly parented both H.R.W.R. and H.J.R. Their marital difficulties continued, however, and in August 2021, Davis filed a complaint for divorce in the Circuit Court for Sevier County. Davis listed both H.R.W.R. and H.J.R. as children of the marriage.
Reilly filed a counter-complaint for divorce. In an amended counter-complaint filed in November 2021, Reilly alleged that only H.R.W.R. was a child of the marriage and that H.J.R.’s birth was the result of "an extramarital affair."
In January 2022, Reilly filed a petition in the Sevier County Juvenile Court seeking to establish Wilde’s paternity of H.J.R. The juvenile court entered an agreed order requiring Reilly, Wilde, and H.J.R. to submit to DNA testing. That testing showed a 99.9999997% probability that Wilde was the biological father of H.J.R.
On September 6, 2022, after receiving the results of the DNA testing, Reilly returned to the circuit court and filed a motion to determine, parentage and to suspend Davis’s visitation with H.J.R. Reilly relied on the DNA test results to rebut Davis’s statutory presumption of parentage to H.J.R. See Tenn. Code Ann. § 36-2-304(a), (b)(1) (2021 & Supp. 2023).
Later in September, Davis filed a motion in the juvenile court to intervene and to dismiss Reilly’s petition to establish Wilde’s paternity of H.J.R. In November 2022, the juvenile court stayed further proceedings on Reilly’s petition to establish Wilde’s paternity and on Davis’s motion to intervene pending the trial court’s ruling on Reilly’s motion to determine parentage and suspend visitation.
In March 2023, the circuit court held a hearing on Reilly’s motion to determine parentage and suspend visitation. The court heard testimony from Wilde, Reilly, Davis, Reilly’s mother, Davis’s stepmother, Davis’s aunt, and a mutual friend of Reilly and Davis. Several exhibits were introduced into evidence, including the results of the DNA testing ordered by the juvenile court.
Both Wilde and Reilly testified that, during the course of their relationship, they had unprotected sexual intercourse at least once a week. They also testified that Reilly received Wilde’s sperm only through sexual intercourse. Wilde denied ever depositing his sperm into a cup or transmitting his sperm to Reilly through any means other than sexual intercourse.
No evidence at the hearing contradicted this testimony regarding the manner of H.J.R.’s conception. Davis testified that she presumed Reilly had identified and was meeting a sperm donor each week for the purpose of conceiving through artificial insemination. Davis explained that another same-sex couple she and Reilly knew had conceived a child through artificial insemination by obtaining sperm from an informal donor rather than from a sperm bank. Bypassing the sperm bank, Davis explained, had saved the couple time and money, and Davis said she and Reilly had discussed this method as well. But Davis conceded that she never asked Reilly what she was doing or whom she was meeting. Davis also agreed that she never saw Reilly artificially inseminate herself and never assisted Reilly with artificial insemination prior to H.J.R.’s conception, as she had done before H.R.W.R. was conceived.
On May 4, 2023, the circuit court issued an order finding both Reilly and Davis to be the parents of H.J.R. The court acknowledged that the testimony established that H.J.R. was conceived through sexual intercourse. But the court nevertheless concluded that "the efforts of the parties [were] tantamount to artificial insemination" under Tennessee Code Annotated section 68-3-306 because "it was the intention of the parties to parent a second child and Ms. Reilly undertook to become pregnant." The court found Reilly’s claim that H.J.R.’s birth was "a product of an affair to be not credible" and instead credited Davis’s testimony that Reilly’s relationship with Wilde was a "planned consensual relationship … for the specific purpose of insemination of" Reilly.
The circuit court declared "both children to be children of the marriage with each parent having the rights and responsibilities of parenthood." The trial court "reserved" the "lights" of Wilde to the juvenile court and declared that its order "shall not be deemed to abridge those rights." The circuit court ordered the temporary parenting plan to remain in place and child support to be paid according to the Tennessee Child Support Guidelines. The court reserved all other issues in the case for further hearing.
Reilly timely filed a motion to reconsider, and, in the alternative, a motion for permission to seek an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. Davis opposed Reilly’s motions and also filed her own motion to dismiss for lack of jurisdiction. The circuit court denied Reilly’s and Davis’s motions on August 30, 2023, following a hearing.
On August 31, 2023, Reilly filed a Rule 10 application in the Court of Appeals, asking the intermediate court to grant the application and determine whether the trial court erred "by using the artificial insemination statute to establish parentage for a minor child that was conceived by natural means (i.e. through sexual intercourse)." The Court of Appeals ordered Davis to file an answer but denied the application on October 3, 2023.
[1] On October 25, 2023, Reilly filed a Rule 10 application in this Court, seeking review of the same issue. Davis’s initial answer addressed only procedural issues, but this Court ordered Davis to file another answer addressing the merits of the substantive issue Reilly had raised. Having now considered the application, both answers, and the record before this Court, we grant the Rule 10 application and dispense with the filing of a record and with additional briefing and oral argument. Tenn. R. App. P. 10(a), (d). We hold that the. artificial insemination statute does not provide a legal basis for establishing parentage in these circumstances, vacate the circuit court’s decision, and remand this matter to the circuit court for farther proceedings.
Davis’s argument that this Court lacks jurisdiction because the appeal was not filed within thirty days of the May 4, 2023 order is without merit. The May 4, 2023 order expressly reserved all other issues for further hearing and facially was not final for purposes of appeal. Tenn. R. App, P. 3(a) ("[A]ny order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities, of all parties."). Reilly promptly filed her Rule 10 application in the Court of Appeals only one day after the trial court denied her motion to reconsider, and she timely filed her Rule 10 application in this Court within thirty days of the Court of Appeals' denial order. Tenn. R. App. P. 10(b).
STANDARD OF REVIEW
[2] Statutory construction is a question of law that we review de novo. Milan Supply Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 141 (Tenn. 2021); Johnson v. Hopkins, 432 S.W.3d. 840, 844 (Tenn. 2013); Fayne v. Vincent, 301 S.W.3d 162, 169 (Tenn. 2009).
ANALYSIS
[3] Tennessee Code Annotated section 68,-3-306 provides that "[a] child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife." This statute uses the terms "married woman" and "married woman’s husband," but the Court of Appeals has construed the statute in a gender-neutral manner, pursuant, to Tennessee Code Annotated section 1-3-104(b) (2023), to avoid constitutional conflict and comply with the United States Supreme Court’s decisions in Obergefell v: Hodges, 576 U.S. 644, 675-76, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), and Pavan v. Smith, 582 U.S. 563, 566, 137 S.Ct. 2075, 198 L.Ed.2d 636 (2017). See Harrison v. Harrison, 643 S.W.3d 376, 383 (Tenn. Ct. App. 2021), perm. app. denied (Tenn. Feb. 10, 2022). Construed in this way, the artificial insemination statute may be applied to establish parentage of children born during a same-sex marriage as a result of artificial insemination. Id.
This statute provides that "[w]ords importing the masculine gender include the feminine and neuter, except when the contrary intention is manifest." Tenn. Code Ann. § 1-3-104(b).
[4, 5] The statute does not define the term "artificial insemination." "We give the words of a statute their ‘natural and ordinary meaning in the context in which they appear and in light of the statute’s general purpose.’" State v. Deberry, 651 S.W.3d 918, 925 (Tenn. 2022) (quoting Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015)). When the statute does not define a term, we may "look to authoritative dictionaries" to determine the term’s meaning. Id.
In Harrison, the Court of Appeals relied on the definition of "artificial insemination" from Black’s Law Dictionary, explaining that the term means "[a] process for achieving conception, whereby semen is inserted into a woman’s vagina by some means other than intercourse." 643 S.W.3d at 381 n.6 (quoting Black’s Law Dictionary 139 (11th ed. 2019)); Courts in other jurisdictions have adopted similar definitions of "artificial insemination" after consulting dictionary definitions of the term. The Georgia Supreme Court’s comprehensive discussion of the term is instructive: Artificial insemination, which has been in use since the late 18th century and has been so named since the early 19th century, see Kara W. Swanson, Adultery By Doctor: Artificial Insemination, 1890-1945, 87 Chi.-Kent L. Rev. 591 (2012), has been consistently defined as the "introduction of semen into the uterus or oviduct by other than natural means … in order to increase the probability of conception." Webster’s Third International Dictionary 124 (1967). See also Black’s Medical Dictionary 65 (26th ed. 1965) (defining artificial insemination as "the introduction of semen into the vagina by artificial means"); Stedman’s Medical Dictionary (28th ed.) (updated Nov. 2014) (defining artificial insemination as "introduction of semen into the vagina other than by coitus"); 59 Am. Jur. 2d Parent and Child § 7 ("Artificial insemination is the introduction of semen into the female reproductive tract by mechanical means in order to effect pregnancy without sexual intercourse."); 8 Attorneys Medical Advisor § 83:12 ("Artificial insemination … refers to the artificial injection of semen into the female’s reproductive tract."). Thus, as the procedure has been understood for over 150 years, see, e.g., J. Marion Sims, Clinical Notes on Uterine Surgery: With Special Reference to the Management of the Sterile Condition 372 (1866), artificial insemination involves the introduction of semen to the female reproductive tract to further the purpose of in vivo fertilization of an ovum. See In re Baby Doe, 291 S.C. 389, 353 S.E.2d 877, 878 (1987) ("Artificial insemination is the introduction of semen into the reproductive tract of a female by artificial means.").
Patton v. Vanterpool, 302 Ga. 253, 806 S.E.2d 493, 495-96 (2017). See also In re Parentage of J.M.K., 155 Wash.2d 374, 119 P.3d 840, 842 n.2 (2005) (defining "artificial insemination" as " ‘the introduction of semen into the vagina other than by coitus’ " (quoting Stedman’s Medical Dictionary 906 (27th ed. 2000))); Karungi v. Ejalu, No. 351165, 2021 WL 3700221 at *6 n.2 (Mich. Ct. App. Aug. 19, 2021) (defining " ‘artificial insemination’ " as " ‘the introduction of semen into the vagina other than by coitus’ " (quoting Stedman’s Medical Dictionary 906 (28th ed. 2014))).
[6, 7] We need not adopt a comprehensive definition of "artificial insemination" to resolve this appeal. The definitions discussed above make clear that, at a minimum, artificial insemination must involve the introduction of sperm into the vagina by means other than sexual intercourse. Here, the uncontradicted evidence establishes that Reilly received Wilde’s sperm exclusively through sexual intercourse. Tennessee Code Annotated section 68-3-306 applies only when a child is "born to a married woman as a result of artificial insemination." H.J.R. was born to Reilly as a result of sexual intercourse, not artificial insemination.
[8] Notably, the circuit court did not find that H.J.R. was conceived through means other than sexual intercourse. It instead concluded that the circumstances presented here were "tantamount to artificial insemination" because "it was the intention of the parties to parent a second child" and "Reilly undertook to become pregnant" by engaging in sexual intercourse with Wilde. But section 68-3-306 applies only when a child is born "as a result of artificial insemination." It does not permit a court to establish parentage based on "efforts" that are "tantamount to artificial insemination" or the parties’ intentions. The circuit court’s ruling extended the statute well beyond its plain and ordinary meaning. Because H.J.R. was not conceived through artificial insemination, the circuit court erred by relying on sec- tion 68-3-306 to establish parentage in this case.
CONCLUSION
The circuit court’s decision applying the artificial insemination statute to establish parentage of a child conceived through sexual intercourse and born during the same-sex couple’s marriage is vacated, and this matter is remanded for further necessary proceedings. Reilly asks this Court to provide the circuit court with directions for resolving the parentage issue on remand. We decline that invitation. This is an extraordinary interlocutory appeal involving a single legal issue and a limited factual record. Resolution of the parentage issue is best left to the circuit court and the juvenile court in the first instance.
This order is designated for publication pursuant to Tennessee Supreme Court Rule 4.
It is so ORDERED.