Earlier this week, Tennessee State Representative Terry Weaver (R-Lancaster) put forward House Bill 1406. HB 1406 would eliminate current statute TCA 68-3-306 which reads:
Many have seen this as an attack on members of the LGBT community, who may rely on artificial insemination in order to have children. When we take a closer look at the issue, we see that that is probably not the case.
While TCA 68-3-306 would be repealed, another law, TCA 36-2-304 would seem to cover the same issue of parentage. TCA 36-2-304 states that when a child is born to a married women, the law presumes the husband to be the father of the child.
The repeal of TCA 68-3-306 would not de-legitimatize the children born from artificial insemination as they would still be recognized as the child of the mother’s husband according to TCA 36-2-304. In other words TCA 68-3-306 was a redundant law that unnecessarily defined the origins of conception in a private union.
Of course, if you’ve been reading closely, you can see issues with both of these laws as they relate to LGBT couples: They do not include them. The Tennessee Constitution defines marriage as being between one man and one woman. Even though the Supreme Court has ruled that same-sex marriage bans are unconstitutional, most of Tennessee marriage laws are written for opposite-sex partners.
In both examples we have seen here, gendered pronouns are used to specify an opposite-sex relationship. It is always mother and father, husband and wife but never mother and mother or husband and husband. This can create difficulties for LGBT couples. The law can never protect those it was not designed for and it was not designed for those in same-sex partnerships.
The Tennessee General Assembly should seek to update its archaic laws concerning marriage in light of the new law of the land. While the LGBT community has gained the right to same-sex marriage, this is another example of how same-sex couples still struggle for equal protection under the law.
