Family Law, Health Care / Medicine, Kids

Bad Facts Lead To Bad Law… And To IVF-Born Babies Without Fathers

There are a lot of kids out there who may lose parents after this ruling.

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Georgia’s Supreme Court is the latest judicial body to struggle with the consequences of medical advancements in the context of Assisted Reproductive Technology (ART). In our brave new world, children can be born to parents not genetically related to them, and legal confusion often results over who is a “parent.” Although in vitro fertilization (IVF) is, frankly, quite common, the facts in the Patton v. Vanterpool case are fairly extreme. And the consequences of the court’s ruling may be equally as extreme.  (But let’s hope not!)

Baby Fever Can Make People Do Crazy Things.  The couple in this case are David Patton and Dr. Jocelyn Vanterpool.  Patton serves in the military. Vanterpool is a traveling doctor. The couple was married in Savannah, Georgia, in 2011.  As often precedes these types of cases, the couple tried to conceive for many years, undergoing multiple bouts of IVF and suffering numerous miscarriages.  Three years into their marriage, Patton filed for divorce.  However, during the time when the divorce was proceeding, Patton also signed consent forms agreeing for Vanterpool to continue with IVF with a clinic located in the Czech Republic. Vanterpool underwent an embryo transfer — with embryos formed from donor eggs and donor sperm that had been formed during the marriage — in the Czech Republic.  The IVF procedure took place a mere four days before the divorce with Patton was finalized.

After all of the prior failures, the IVF procedure resulted in the birth of twins the following summer.  Sadly, one of the twins died soon after birth.  However, the other survived and is the subject of this case.  The question is whether Patton should be considered the parent of a child conceived under such conditions. Patton doesn’t want to be. But Vanterpool would like him to be for a number of legal reasons.

Do Words Mean What They Say?  The crux of the case comes down to statutory interpretation. Do words mean exactly what they say, or do they mean something more than their literal meaning when given context? The Georgia statute in question, OGCA Sec. 19-7-21, states that “all children born within wedlock or within the usual period of gestation thereafter who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination.”

The statute makes logical sense. For instance, if a couple uses a sperm donor to conceive, the father should not be able to change his mind during the pregnancy simply because he isn’t genetically related to the child. In the same vein, the mother of the child can’t exclude the father from parenthood on the same basis. But admittedly, the statute is specific to “artificial insemination.” That’s the process where sperm — not a fertilized embryo — is directly placed into a woman for purposes of conception. “IVF,” on the other hand, combines egg and sperm in a clinic or laboratory and then places a resulting embryo (or two) into a woman for the purpose of conception. So technically, the two are different processes.

Reasonable Minds Can Think The Other Person Is Being Unreasonable.  I spoke with Lila Bradley, an assisted reproductive technology-specialized attorney in Georgia about this case. Bradley is concerned for many of her clients, and the consequences of the court’s ruling, but finds herself unable to disagree with the court’s reasoning. “The statute is specific to artificial insemination, and IVF is not the same as artificial insemination. The fix needs to come from the state legislature.”

With all due respect, I find the dissent in the Patton matter — written by Presiding Judge McFadden — more persuasive. Judge McFadden even drops the mic by referring to Oliver Wendell Holmes, who noted that “[a] word is not a crystal, transparent and unchanged; it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used.”  Most notably, the Georgia statute was enacted at a time when IVF had not yet been conceived.

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Not The First Time This Has Come Up. Other courts have faced this exact question and ruled in the opposite direction as the Georgia Supreme Court. For instance, in Maryland’s Sieglein v. Schmidt, a father attempted to avoid his parental obligations by arguing that his wife had used IVF, and not “artificial insemination,” as required by the Maryland statute. The Maryland Court of Appeals found that the precise physical procedure was not dispositive of the application of the statute, and that the statute should, in fact, be construed to include IVF.

More broadly, Lila Bradley and I do agree that this ruling is a “huge deal.” Prior to this decision, it was generally understood that a father of a child conceived through IVF was, indeed, the father. Now, the door is wide open for those same “fathers” to object to their parental status, and for mothers to object to their status.

To be sure, there is some room for interpretation in these other cases. Where a father “holds himself out” as a parent to a child, a fact-sensitive analysis may conclude that he is a parent, regardless of genetics or the conception procedure. But the bright line test is gone, and with it, there are a lot of Georgia kids out there who may lose parents after this ruling.

So let’s hope the Georgia legislature takes a timely and thoughtful approach to fix this unfortunate situation.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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