On Monday, September 18, 2023, the Court of Appeals of Georgia issued an intriguing ruling in the case of Smith v. Smith, centered around a divorcing couple’s dispute over a single viable embryo conceived through fertility treatment. This marked an issue of first impression in Georgia where the court mirrored the approach many courts around the nation by examining the embryo dispute approaches from across the United States.
The approaches taken by national courts typically fall into one of three categories: the contractual approach, the balancing approach and the contemporaneous mutual consent approach. The contractual agreement between the parties is scrutinized, upon failing which, the balance of interests is considered.
In this case, the trial court first focused on the In Vitro Fertilization (IVF) clinic consent form signed by both parties. The form contained conflicting clauses that could potentially determine the future of the embryos, leading to differing interpretations of its provisions.
The trial court opted to value the provision narrower in scope which allowed the court outside of the agreement choices, upon an event of divorce, to decide the fate of the embryos. Determining the equitable division of property was followed to award the embryo to the wife. The reasoning includes her significant contributions to its creation and a medical diagnosis that presented her likely only chance at a biological child.
On the other hand, the Court of Appeals decided to follow the provision with broader language which determines the fate of the embryos in case of an inability to agree or any unforeseen circumstances, including a divorce. The agreement’s indication of embryo donation in such a situation was enforced. A 2-1 split decision fell in favor of the husband.
The concluding opinions reveal the disagreement between courts about the approach taken in such a complex and unique case. It emphasizes the need for clear and precise agreements to avoid litigation and legal troubles. In a conversation with Lila Newberry Bradley, a Georgia-based expert on adoption and assisted reproductive technology law, two key takeaways were noted: clarity in consent forms for the patient’s best interest and couples seeking legal counsel before undergoing IVF treatment.
The full repercussions of this case are yet to be determined, but highlights a critical issue that may be addressed in future procedures. Whether the Supreme Court of Georgia will decide to take up the case remains uncertain. Nonetheless, it leaves clinics and patients aware of the importance of dotting their i’s and crossing their t’s before embarking on their fertility journey.
The lesson for couples undergoing IVF treatment? Ensure you consult with legal counsel and include the frozen gametes and embryos in a postnuptial agreement, or similar, that clearly outlines the intention and agreement of both parties regarding their disposition in the event of a divorce or separation.
For the full coverage of the event, the original article can be accessed here.