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In re C.K.G.10/6/2005
the husband is presumed father) where the wife conceives naturally. See Tenn. Code Ann. * 36-2-304 (2001 & Supp. 2004). The benefit does not assume the existence of the relationship like the majority asserts, but the relationship must first exist before the benefit is available.
By inquiring-"Who is the mother of these children?"-the majority raises the specter of the "motherless child"; that is, the impression has been given that the children will have no mother unless we find a way to confer those rights upon Ms. C. Such is not the case. The children do indeed have a mother. It just happens that the mother's identity here is, as is sometimes the case, unknown. The real question which should have been considered and answered by this court is whether the plaintiff is the children's legal mother. The answer is apparently no.
The majority, in placing Ms. C. on equal legal footing with the children's biological and legal father, Dr. G., in my view, is an exercise of largesse gone too far awry. We are to apply the law, and in the process, we are neither to unduly restrict or expand statutes' coverage. See Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). In my view, the majority reached beyond existing law to produce a palatable result. This overreaching is not necessary in my opinion. Thus, this case should be resolved under the law as it currently exists today. Tennessee statutes do not use gestation or intent to confer parental status, instead genetics, marriage and adoption are the routes available. Therefore, by reviewing and analyzing the Tennessee statutes which are based on biology, Ms. C. is not the parent nor is she the legal mother of the children for purposes of this case, and she has no legal standing to sue for custody or support as a parent. Adoption, nevertheless, remains an option.
We, as interpreters of the law, not makers of the law, are powerless, in my view, to reach a different resolution. Accordingly, I would reverse the judgment of the Court of Appeals and remand the cause to the trial court where it would proceed as a contest between a parent and a non-parent under settled Tennessee authority.
ADOLPHO A. BIRCH, JR.
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