If Erica Witt were a man, she would have just as much right to a daughter conceived via artificial insemination as her spouse.
But in the first ruling of its kind in Tennessee, a Knox County judge on Friday opined that because she is a woman who legally married a woman, state law does not confer to her the power of decision-making over the child or 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 Washington, D.C., in April 2014, bought a home in Knoxville and decided to have a child via artificial insemination from an anonymous donor. Sabrina Witt bore a baby girl as a result in January 2015. Because Tennessee did not then recognize same-sex marriage as legal, Erica Witt’s name was not placed on the baby’s birth certificate.
In February, Sabrina Witt filed for divorce. Her attorney, John Harber, contended the only law on Tennessee’s books addressing parenting rights in the case of artificial insemination — enacted in 1977 — makes clear the law applies only to husbands.
“That terminology is not interchangeable,” Harber argued at a hearing 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 due to a U.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 attorney, Virginia Schwamm, contends the same reasoning used by the nation’s high court 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,” Schwamm 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.”