On Monday, September 18, 2023, the Georgia Court of Appeals issued a ruling in Smith v. Smith. The fact pattern will sound like the well-known classic circumstances. The divorcing couple married in 2019 and began fertility treatment in early 2020. The husband had two adult children from a previous relationship and had a vasectomy with his new wife. The woman, on the other hand, had no previous children and was advised that she needed fertility treatment to fulfill her hopes of conceiving. So the woman went all out. She changed her diet, received numerous injections and underwent operations. In the end, the treatments resulted in a single viable embryo – the subject of the appeals court’s decision.
When the couple divorced in 2022, the assets in dispute included the single embryo. As a matter of first impression in Georgia, the trial court – like many courts across the country – examined various approaches to embryo litigation used throughout the United States. The Court recognized the three main approaches used in deciding who should receive an embryo upon the dissolution of a marriage: 1) the contractual approach, 2) the deliberative approach, and 3) the contemporaneous mutual consent approach. Following the majority’s approach of examining each contractual agreement between the parties and, failing that, balancing the interests of the parties, the court initially focused on the IVF clinic consent form signed by both parties.
The blue and gold dress of contracts
Before beginning the IVF process in 2020, the Smiths entered into an “embryo and/or egg cryopreservation agreement,” which, depending on how you interpret the terms, may put you on the opposite side of this dispute. In the relevant part, the contract confusingly contained several, possibly overlapping, sections about the potential future of the embryos in different scenarios.
One provision read as follows: “DISPOTION OF EMBRYO(S): We intend to thaw and transfer these embryos back into the partner’s uterus. However, should we change our decision in this regard for any reason, we understand that we have three options: “The contract then provided for the three options: 1) embryo donation to another couple, 2) cell culture and degeneration/disposal, and 3) scientific study. Then the form looked like this: “The possibility of death, disappearance, incapacity, inability to agree on future disposition, or any other unforeseen circumstance that may result in none of us being able to determine the fate of one or more stored embryos requires us now announce our wishes. We understand that one of the three decisions explained above must be made. In the event that we are unable to make a decision later, we are now expressing our desire to dispose of some or all of our frozen embryos as follows: Please select an option.” The parties initialed next to “Embryo Donation.”
Further down, the consent form provided even more information on this topic, stating: “In the event of a divorce, separation or dissolution of marriage We understand that legal ownership of stored embryos must be clarified in an ownership agreement and upon order of a court or similar. is released[f] competent jurisprudence.”
The court liked the narrow wording of the provision
The trial court noted that the later provision, which relates specifically to the case of divorce, requires that the decision be made by the court outside of the contractual options. Subsequently, the trial court weighed the interests of the parties, applied the doctrine of “equitable division of property” and awarded the embryo to the wife, who, in the court’s opinion, had made a significant contribution to the creation of the embryo and had duly testified to this due to her age (38) and her medical diagnosis was probably her only chance of having a biological child.
The husband was not satisfied with the court’s logic and decided to appeal the verdict.
The appeal court likes the broad wording of the provision
The appeals court reversed the trial court’s decision, ignoring the divorce-specific provision and finding that the broader provision “inability to agree on a future disposition or any other unforeseen circumstance that may result in neither of us having one.” “The fate of each stored embryo” must be taken into account in the current divorce situation, and the parties’ decision to donate embryos must be enforced. So that was a victory for the husband.
The appeal court’s decision was not unanimous. But in a 2-1 split, the husband prevailed. Interestingly, the only female judge on the panel ruled in favor of the wife, while the two male judges ruled in favor of the husband. In her dissent, Presiding Judge Barnes agreed with the trial court that the agreement expressly excluded divorce from the disposition clauses, and she held that the trial court did not err in applying Georgia’s marital property doctrine to to determine ownership of the couple’s embryo.
I had the opportunity to speak with Georgia adoption and assisted reproductive technology legal expert Lila Newberry Bradley (also a previous guest on the podcast in the episode “Busting the ‘Just Adopt’ Myth”). Bradley wasn’t surprised by the ruling after watching the oral arguments, but she sympathized with the parties. She works daily with clients who are navigating the deeply personal and meaningful journey of whether to have a genetic child. Bradley explained some key takeaways from the decision.
- Clinics can do better. As noted in the dissent, the agreement in question was signed by the husband, wife and a representative of the clinic. “It was not a separate agreement that was binding during the process, but … intended to protect the clinic.” However, it is not in a clinic’s interest for its patients’ embryos to become the subject of litigation. The clinic remains stuck in the middle as the holder of the embryos. The clearer the consent forms are, the better for everyone.
- Patients need to take care of themselves. Bradley recommends that all couples undergoing in vitro fertility treatment that involves storing genetic material consult legal counsel. The couple should include the frozen gametes and embryos in a post-nuptial or similar agreement that clearly sets out both parties’ intentions and agreement regarding their disposition in the event of a divorce or separation. Don’t give in to the dice roll over how a judge can read a clinic consent form.
Will the Georgia Supreme Court next hear this case? We will see. In the meantime, clinics and those beginning their fertility journeys can take steps to maintain clear documentation of disposition decisions – both in the event of a divorce and other unforeseen circumstances.
Ellen Trachman is the managing attorney of Trachman Law Center, LLCa Denver-based law firm specializing in assisted reproductive technology law and co-host of the podcast I want to put a baby inside you. You can reach them at Babies@abovethelaw.com.