The Georgia Supreme Court has handed down a decision that could affect Georgia children conceived by in vitro fertilization (IVF). Following a three-year-long legal battle, the Court recently ruled in Patton vs. Vanterpool that children who are conceived by IVF have no irrebuttably presumed legal father. The Court drew a distinction between children conceived by “in vivo” fertilization, meaning inside the body, and children conceived by “in vitro” fertilization, meaning outside of the body and later implanted in the uterus.

The case Patton vs. Vanterpool involves a Georgia couple who were in the process of divorce when the wife became pregnant through IVF – with both a donor egg and a donor sperm. Following the couple’s divorce, the wife gave birth to twins. One of the babies died a few months later. The question to the court was whether the ex-husband was the legal father of the surviving baby, meaning he would have legal parental rights and obligations. The Georgia Supreme Court held that the husband of a woman who gives birth following IVF is not irrebuttably presumed to be the father of that IVF baby.

Justice Carol Hunstein, who wrote the Georgia Supreme Court opinion, cited a 1964 Georgia Statute which acknowledges artificial insemination (but not IVF) as an artificial form of conception, which would result in the husband being the legal father:

“OCGA § 19–7–21 creates an ‘irrebuttable presumption’ of legitimacy with respect to ‘[a]ll children born within wedlock or within the usual period of gestation thereafter who [were] conceived by means of artificial insemination. This appeal presents the question of whether that irrebuttable presumption applies to children so conceived by means of in-vitro fertilization. We conclude that it does not and reverse the judgment of the superior court” (emphasis added). For full case: https://law.justia.com/cases/georgia/supreme-court/2017/s17a0767.html.

In other words, if the twins had been conceived through artificial insemination, the ex-husband would not be able to contest legal paternity. But because the babies were conceived by IVF, Georgia law does not presume that the ex-husband is their legal father.

So what does this mean for Georgia children conceived through IVF? According to the ruling in Patton vs. Vanterpool, these children do not automatically have legal fathers. Without establishing legal paternity, the husband or ex-husband may not have any parental rights or obligations such as parenting time or child support. The Court did not rule on whether husbands or ex-husbands in this situation may still be found to be the legal father under other statutes, such as OCGA § 19-7-20, which governs most legitimation. It remains to be seen whether the Georgia legislature will act in response to this decision by expanding the types of reproductive technology for which legal paternity will be presumed.

If you or someone you know needs help navigating assisted reproductive technology legal issues, contact Porchlight at (678) 435-9069 or [email protected].