IN THE FOURTH CIRCUIT COURT F'OR KNOX COUNTY, TENNESSEE

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SABRINA RENAE \ryITT, ., .., ) ",,,
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_Ctrii;i)r ;l
Plaintiff, ,r,ni?i, tt.ji:iit
)
v )
)
ERICA CHRISTINE \ryITT, ) No. 136047
)
Defendant, ) RECEIVED
) STATE ATTORNEY GENERAL
v )
) OcT 2 4 2016
STATE OF TENNESSEEO )
HEAI,'TH CATi!] DIVISION
)
Intervenor )

MEMORANDUM OF LAW OF THE STATE OF TENNESSEE

rN DEFENSE OF THE CONSTITUTIONALITY OF TENN. CODE ANN. $ 68-3-306

STATEMENT OF THE CASE

In this pending divorce action involving a same-sex couple, this Court was called upon to

determine whether Defendant, Erica Witt, has parental rights to a child who was born to the

Plaintiff, Sabrina Witt, during the parties' marriage as a result of artificial insemination and by

agreement of the parties.l The Court ruled on July 6, 2016, that Defendant has no parental rights

to the child. In so ruling, the Court declined Defendant's request to apply Tenn. Code Ann. $ 68-

3-306 to this case. That statute 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."

t The parties were married in Washington, D.C., on April 4,2014. The child was born in Tennessee on January 25,
2Ar5.
 Defendant has since filed a motion to reconsider and to alter or amend the judgment,

asserting that the Court's interpretation and non-application of $ 68-3-306 is unconstitutional.

Defendant also served notice of her constitutional challenge on the Tennessee Attorney General,

and the Attorney General, onbehalf of the State of Tennessee, has intervened inthis case forthe

limited purpose of defending the constitutionality of the statute against Defendant's as-applied

challenge.

ARGUMENT

In Obergefell v. Hodges, 135 S. Ct. 2584 (2015),2 the United States Supreme Court held

that "same-sex couples may exercise the fundamental right to marry," that State laws are "invalid

to the extent they exclude same-sex couples from civil marriage on the same terms and conditions

as opposite-sex couples," and that "there is no lawful basis for a State to refuse to recognize a

lawful same-sex marriage performed in another State on the ground of its same-sex character."

135 S. Ct. at 2604-05,2608. The State of Tennessee was a defendant in Obergefell.

Construed literally, Tenn. Code Ann. $ 68-3-306 would run afoul of the holding in
ObergefelL lt would 'oexclude same-sox couples from civil marriage on the same terms and

conditions as opposite-sex couples," because it would deem a child bom to a married woman as a

result of artificial insemination to be the legitimate child of a male spouse of that woman, but not

of afemale spouse of that woman, See, e,g., Marie v, Mosier,No. 14-cv-02518-DDC-TJJ,2016

WL 395 1744, at *13, 15 (D. Kan. July 22,2016) (applying Obergefell and enjoining State

defendants from treating same-sox married couples differently from opposite-sex couples in the

context of "deterrnining the rights, protections, obligations or benefits of marriage," including with

respect to the State law permitting an opposite-sex married couple to list both spouses as parents

2
The decision was issued on June 26,2015.

2
of a child conceived through artificial insemination); Henderson v. Adams, No. l:I5-cv-00220-

TWP-MJD,2016 WL 3548645, at *13, *15, *16 (S.D. Ind, June 30, 2016) (applying Obergefell

and enjoining State defendants from applying State parentage laws in a way that differentiates

between male and female spouses of women who have given birth as a result of artificial
insemination).3

Tennessee Code Ann. $ 68-3-306, however, need not and should not be construed literally.

Courts have a duty to construe a statute in a way that will sustain it and avoid constitutional
conflict, if such a reasonable construction exists. Davis-Kidd Booksellers, Inc. v. McWherter,866

S.W.3d 520, 530 (Tenn. 1993). Under Tenn. Code Ann. $ 1-3-104(b), statutory "[w]ords

importing the masculine gender include the feminine and neuter, except when the contrary
oowife"
intention is manifest." So both the word "husband" and the word in $ 68-3-306 would be

properly construed to mean "spouse."

A reasonable construction exists that will avoid constitutional conflict,that construction is

in fact favored under $ 1-3-104(b), and no contrary intention is manifest to prevent that

o'reflects
construction. Tennessee Code Ann. $ 68-3-306 works to legitimate children; the statute

a policy which favors taking into account intent in establishing parentage when technological

assistance is involved.'o In re C. K. G., 173 S.W.3d714,728 (Tenn. 2005). The legislature's use

of the words "husband" and "wife" merely reflects the fact that only opposite-sex marriages were

recognized in Tennessee when the statute was enacted in 1977 . After Obergefell, of course, that

3 See also Torres v. Seemeyer, No. l5-cv-288-bbc,2016 WL 4919978, at*2, *5, *9 (W.D. Wis. Sept. 14,2016)
(enjoining State defendant from enforcing State's artificial-insemination statute differently for same-sex married
couples than for opposite-sex married couples but noting State's concession that when the statute has been complied
with, "female married couples who conceive a child through artificial insemination should have the same right to a
two-parent birth certifcate as a different-sex couple");Gardenour v, Bondelie, No. 32401-1601-DR-82, at
*8'9 (Ind.
Ct. App. Aug. 15, 2016) (applying State's common-law rule that'owhere both the husband and wife . . . consent to
artificial insemination, the resulting child is a child of their marriage" to a California domestic partnership between
two women).

J
is no longer the case. In order to preserve the constitutionality of Tenn. Code Ann. $ 68-3-306,

therfore, it must now be construed to read: "A child bom 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 the two spouses."

CONCLUSION

For the reasons stated, the Court should rule that Tenn. Code Ann. $ 68-3-306 must be

construed so as to apply to a child bom as a result of artificial insemination during a same-sex

marriage and that, as applied, the statute is constitutional.

Respectfully submitted,

HERBERT H. SLATERY III

Attorney General and Reporter

E. SEDGWICK, B
Senior Counsel
Health Care Division
Office of the Attorney General
P. O. Box 20207
Nashville, Tennessee 37 202-0207
(61s) s32-2s8e

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 CERTIF'ICATE OF' SERVICE
I hereby certify that a true and exact copy of the foregoing Brief of the State of Tennessee
in Support of the Constitutionality of Tenn. Code Ann. $ 68-3-306 has been sent by first-class
mail, postage prepaid, onthis of October,2016,to:
7fifd

John K. Harber
Attorney r the P laintiff
Pryor, Priest, Harber, Floyd & Coffey
Two Centre Square, Suite 600
Knoxville, Teruressee 37 902

Virginia A. Schwamm
Attorney for the Defendant
164 Market Place Boulevard
Knoxville, Tennessee 37 922

E. CK