Case Notes

The attorney for the parties' two sons filed an affidavit, recounting how they had been observing fights between their parents, and characterizing the family's home as a “very stressful environment” and “unhealthy.”

The court first noted that a hostile home environment during a divorce runs contrary to the best interest of the children. Although the court also noted prior cases requiring violence or threat of violence to support an order evicting a spouse, the court held that social science had indicated that even verbal strife inflicted emotional harm on children. Therefore, despite the court's inability to identify the perpetrator of the strife, the court ordered the husband to vacate the residence based on the wife's provision of funds for his relocation.

In Georgia, Parents' Marriage at Implantation Does Not Equal Legitimacy for IVF Child

The Supreme Court of Georgia has declared that a child who was conceived through in-vitro fertilization (IVF) is not presumed the biological father's legitimate offspring, even when the parties are married at the time of fertilization and implantation, unless the parties are still married at the time of birth. Patton v. Vanterpool, 2017 Ga. LEXIS 896 (Ga. 10/16/17).

The parties were in the process of divorce when the husband gave his consent for the wife to be implanted with embyos created from donor sperm and donor eggs (this was apparently required in the Czech Republic, where the procedure took place). Four days after the embryos were implanted, the couple's divorce was granted. No provision was made for any possible children.

Two fetuses developed but only one survived, and she was born prematurely at about 30 weeks' gestation. The wife then moved to have the divorce decree set aside so that a new one could include consideration of the child. This motion was denied.

The wife instituted a paternity action, alleging that the husband gave his written consent for the IVF procedure and that OCGA § 19-7-21 created an irrebuttable presumption of paternity. The husband claimed he gave his permission only to speed the divorce, and that, at any rate, OCGA § 19-7-21 was unconstitutional. The trial court sided with the wife, but the state high court agreed to hear the husband's appeal.

The high court reversed. It noted that in 2009, Georgia's legislature enacted GA (1)(1) Family Law. Paternity & Surrogacy. OCGA § 19-7-21, which created an irrebuttable presumption of legitimacy for a child conceived through artificial insemination — through the introduction of sperm into the mother's body — who is born during the mother's marriage or during the normal period of gestation thereafter. The ability to create embryos outside the body through IVF — which could then be transferred to a woman's womb for gestation — existed at that time, yet the legislature did not choose to create such an irrebuttable presumption of legitimacy for children conceived in this manner. “Further,” stated the court, “the irrebuttable presumption of legitimacy in OCGA § 19-7-21 is an exception to the general rule, found in § 19-7-20 (b), that legitimacy may be disputed, and an expansive reading of OCGA § 19-7-21 would allow the exception to swallow the rule.”

Because the legislature has not shown an intention that such children should be treated as presumptively legitimate, the presumption of legitimacy does not exist in Georgia for children conceived through IVF and born when the mother is not married, the Georgia Supreme Court determined. The trial court's judgment was reversed.