Erica Witt reacts, alongside her attorney Virginia Schwamm, as she is denied same-sex parenting rights during a Knox County Circuit Court hearing Friday June 24, 2016. Judge Greg McMillan opined that because she is a woman who legally married a woman, state law does not confer to her any parenting rights. (AMY SMOTHERMAN BURGESS/NEWS SENTINEL)

SHARE Judge Greg McMillan hears the arguments for Erica Witt to have same-sex parenting rights during a Knox County Circuit Court hearing Friday June 24, 2016. McMillan opined that because she is a woman who legally married a woman, state law does not confer to her any parenting rights. (AMY SMOTHERMAN BURGESS/NEWS SENTINEL)

By Jamie Satterfield of the Knoxville News Sentinel

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."

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."

Schwamm called the language of husband and wife outdated and urged McMillan to 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 by 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 his ruling does not bar Erica Witt from seeking visitation with the child, likening her to a stepparent.

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. The decision means she is under no obligation to pay child support either.