Artificial insemination brings angst in immoral homosexual divorce
THE FRUIT OF A POISONED BROKEN TREE
If Erica Witt were a man, she would have just as much right to a daughter conceived via artificial insemination as her spouse. But the Knox County judge said state law confers neither the power of decision-making over the child to her nor the obligation to provide financial support for the girl now that the same-sex couple is divorcing.
"I believe this is a situation where (Erica Witt) has no biological relationship with this child, has no contractual relationship with this child," 4th Circuit Court Judge Greg McMillan ruled.
Erica Witt and Sabrina Witt legally wed in in April 2014 in the nation's capital, bought a home here and decided to have a child via artificial insemination from an anonymous donor. Sabrina Witt gave birth to a girl in January 2015. Because Tennessee did not then recognize same-sex marriage as legal at that time, Erica Witt's name was not placed on the baby's birth certificate.
In February, Sabrina Witt filed for divorce. Her lawyer, John Harber, contended that the only law on Tennessee's books addressing parenting rights in the case of artificial insemination — enacted in 1977 — clearly applies only to husbands."That terminology is not interchangeable," Harber argued Friday.
Tennessee still doesn't have a law on the books officially recognizing same-sex marriage but is essentially under a mandate to do so because of aU.S. Supreme Court decision last year recognizing the rights of same-sex couples to marry. That ruling did not address divorce or parental rights in a divorce in which neither same-sex partner legally adopted the child they call their own.
Erica Witt's lawyer, Virginia Schwamm, contends that the same reasoning that the nation's high court used in marriage applies in divorce and custody matters. "The argument that marriage may only consist of a 'husband' and a 'wife' has been held to be unconstitutional," she said. "(Tennessee marriage certificates) still (indicate) male and female, but surely that no longer applies. Just because the statute reads man and woman, this court can interpret the statute in a manner that makes it constitutional."
Harber disagreed.
"That terminology is not interchangeable," he said. "What we're asking the court to do today is interpret (the artificial insemination) statute as it is. Under this statute, we do not believe (Erica Witt) would qualify as a parent."
simply update it via his ruling, just as court clerks' offices across the state are now revamping all manner of domestic forms, from marriage certificates to divorce petitions, to accommodate same-sex couples.
"There has been a commitment on the part of (Erica Witt) to raise this child, to be there for this child," Schwamm said. "The paramount consideration for the courts is the best interest of the child."
But McMillan said it was not up to the courts to enact "social policy" via legal rulings and a strict reading of the artificial insemination law tied his hands in this case.
"I believe as a trial court I am not to plow new ground, but to apply precedent and the law," McMillan said.
He is allowing Schwamm to appeal, putting the divorce action on hold pending a decision from the Tennessee Court of Appeals on whether to hear the issue.
"Given the novelty of this issue, the court thinks it appropriate to see if the appellate courts want to address this," he said. McMillan also opined that his ruling does not bar Erica Witt from seeking visitation with the child, likening her to a step-parent. Erica Witt left the courtroom in tears. Sabrina Witt did not attend.
Schwamm said Erica Witt has been "extremely involved" with raising the girl and is heartbroken at Friday's ruling.
Even if McMillan eventually awards Erica Witt visitation rights, his refusal to recognize her as a parent means she will have no say in issues including the child's education and medical needs. It also means she is under no obligation to pay child support.
Schwamm said Erica Witt has been "extremely involved" with raising the girl and is heartbroken at Friday's ruling.
Even if McMillan eventually awards Erica Witt visitation rights, his refusal to recognize her as a parent means she will have no say in issues including the child's education and medical needs. It also means she is under no obligation to pay child support.
