Georgia Appellate Court Issues Whiplash Embryo Ruling
// On Monday, September 18, 2023, the Court of Appeals of Georgia issued a ruling in the case of Smith v. Smith. The fact pattern will sound like the familiar classic circumstances. The divorcing couple married in 2019 and started fertility treatment in early 2020. The husband had two adult children from a prior relationship and underwent a vasectomy reversal for his new wife. The wife, on the other hand, had no prior children and was advised that she needed fertility treatment to fulfill her hopes of conceiving. So the wife went all in. She changed her diet, received numerous injections, and underwent surgeries. In the end, the treatments resulted in a single viable embryo — the subject of the Court of Appeals’ ruling.
When the couple divorced in 2022, included among disputed property was the single embryo. As an issue of first impression in Georgia, the trial court — as many courts around the country have done — looked to various embryo dispute approaches used throughout the United States. The court acknowledged the three leading approaches used when determining who should be awarded an embryo upon the dissolution of a marriage: 1) the contractual approach, 2) the balancing approach, and 3) the contemporaneous mutual consent approach. In following the majority approach of looking at any contractual agreement between the parties and, failing that, balancing the parties’ interests, the court first focused on the IVF clinic consent form signed by both parties.
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Sponsored NetDocuments’ Rebecca Sattin On Customer-First Approach And Future-Proofing Your Firm How a customer-focused transition from Worldox to NetDocuments sets the stage for a future of successful tech advancement. From Ethan BebernessPrior to beginning the IVF process in 2020, the Smiths executed an “Agreement for Cryopreservation of Embryos and or Oocyte,” which, depending on your interpretation of its provisions, can put you on opposite sides of this dispute. In pertinent part, the contract confusingly had multiple, possibly overlapping, sections concerning the potential future of the embryos under various scenarios.
Broad Language
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Narrow Language
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The Trial Court Liked The Provision With Narrow Language
The trial court determined that the later provision, specific to an event of divorce, required that the decision be made by the court outside of the agreement choices. The trial court then went on to weigh the interests of the parties, apply the “equitable division of property” doctrine, and awarded the embryo to the wife, who the court concluded had made significant contributions to the embryo’s creation and who had testified that due to her age (38) and medical diagnosis, presented her likely only chance at a biological child.
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The Court Of Appeals Likes The Provision With Broad Language
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The Split
The Court of Appeals’ ruling was not unanimous. But in a 2-1 split, the husband prevailed. Interestingly, the sole female judge on the panel ruled in favor of the wife, while the two male judges ruled for the husband. In her dissent, Presiding Judge Barnes agreed with the trial court that the agreement specifically excluded divorce from the disposition clauses, and she believed that the trial court did not err in applying Georgia’s marital property doctrine to determine ownership of the couple’s embryo.
The Lessons
I had a chance to speak with Georgia adoption and assisted reproductive technology law expert Lila Newberry Bradley (also a prior guest of the podcast on the episode “Busting the ‘Just Adopt’ Myth”). Bradley was not surprised by the ruling after watching oral arguments, but she was sympathetic to the parties. She works with clients on a daily basis who are navigating the deeply personal and meaningful path of whether to have a genetic child. Bradley explained some important takeaways from the decision.
What’s Next?
Is the Supreme Court of Georgia next up for this case? Time will tell. In the meantime, for clinics and those at the beginning of their fertility journey, steps can be taken to have clear documentation of disposition choices — both in case of divorce and any other unforeseen circumstances.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].
TopicsAssisted Reproductive Technology (ART), Ellen Trachman, Family Law, Georgia
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Originally posted on: https://abovethelaw.com/2023/09/georgia-appellate-court-issues-whiplash-embryo-ruling/