‘Right to prohibit procreation’ is central issue in Georgia’s Frozen Embryo Divorce Complaints Case

Newnan attorney Delia Crouch asked the Georgia Circuit Court of Appeals Wednesday to consider the right to choose (or refuse) reproduction as a divorce case in a county southwest of the Atlanta metropolitan area took an unexpected turn into uncharted territory.

A Coweta County court had awarded bankruptcy trustee and ex-wife Lauri Smith the rights to an embryo she co-created with respondent and ex-husband Jonathan Smith. However, Jonathan Smith does not want to have a child with his ex-wife. According to Crouch: “Although [Lauri Smith] stated that she would take full responsibility [for the child]Georgia law does not allow a parent to refuse to support their child.”

Crouch noted two flaws in the trial court’s decision-making process:

  • Since the parties failed to enforce an agreement that provided that in the event of a disagreement, the embryo could be disposed of through a donation.
  • Erroneous application of a balancing test of the parties’ interests, in which they failed to take into account the applicant’s right to avoid procreation and parenthood with a woman to whom he was not married.

Prior to the divorce, the parties had jointly frozen embryos for possible future use. The two had signed a contract that stipulated what should happen to the embryos under certain circumstances.

According to Crouch, the wording of the contract was such that either Smith had disappeared, became incapacitated in the event of unforeseen circumstances, or the Smiths could not make a decision about the fate of the stored embryos that would be donated. Donated embryos are given to another couple who wish to have children.

However, plaintiff and appellant attorney David Webster, in interpreting the context of the contract signed by the Smiths, said that a divorce is not the same as a disagreement and should be interpreted separately – in this case by the trial court.

David A Webster. (Photo courtesy)

“[The contract] does not mention divorce, although it is a common and well-recognized case of failure to act together,” Webster said. “If the parties had intended that the language in [the contract] If they cover the situation of a divorce, they could and would have said that.”

Judge Trenton Brown III asked whether Webster believed the parties anticipated the possibility of such an outcome. Webster replied that the whole purpose of this section is to enumerate what to do in case of unexpected results. He also pointed out that while the contract regulates the divorce in a separate paragraph, it never links that to the provision stating what to do in the event of a disagreement.

Crouch, on the other hand, said the divorce fit into the context of an inability to disagree. In addition, she argued that the case law cited by the trial court related to disputes over monetary value, as opposed to “the significant consequences that follow when a person is forced to be a woman to whom he was not married”. and “to balance the interests of the parties”. To reproduce or not to reproduce.”

Judge E. Trenton Brown III, Georgia Court of Appeals. Judge E. Trenton Brown III, Georgia Court of Appeals. (Photo courtesy)

Webster disagreed with this final concept put forward by Crouch. Instead, he said the desire not to reproduce is a strong interest that requires a balancing test, but that there is no right not to reproduce.

Brown asked Crouch why then the trial court’s decision was not supported by the case file. According to Crouch, the plaintiff at the trial “strongly and repeatedly argued that this was a human life, that she should give it life, and that this was a forced abortion.”

Crouch continued, “That was post-[Dobbs v. Jackson]Therefore, the arguments presented before the court were very emotional and sometimes polarizing. If you ask me why I think the judge [ruled this way]I don’t think any senior judge wants to be on the front page of the newspaper and say, “I took this woman’s last best chance away.”

In addition to Brown, the case was heard by Presiding Justice Anne Elizabeth Barnes and Justice Todd Markle. The original case was presided over by Judge Travis Sakrison in Superior Court of Coweta County, No. 22CV45. Other attorneys included John Cunningham for defendant and Desiree Duke for plaintiff and plaintiff.

The case is Jonathan Smith v. Lauri Smith, No. A23A0896 in the Georgia Court of Appeals.