Georgia Law and Frozen Embryos: Who Has Rights?

With the advancement of technology and the rapid development of fertility testing and treatment, assisted reproductive technologies (ART) have become more common, with in vitro fertilization (IVF) emerging as the most utilized method.

IVF involves taking eggs from a female donor, fertilizing them in the laboratory with a male’s sperm and transferring the resulting embryos back to a female’s uterus, usually three to five days later. The donors are usually spouses, same-sex partners, or selected donors if a party decides to conceive on their own. Between donation and implantation, the eggs are stored and frozen. In any IVF procedure, excess embryos are often created, and in some scenarios, couples decide not to implant at all, for a number of reasons, including financial resources or the desire to limit the number of potential offspring created at once. Under current practice, couples may discard them, donate them or freeze them for possible use in the future (cryopreservation).

Divorce’s Impact on Frozen Embryos

During a divorce, this issue raises many ethical and legal dilemmas, which focus on whether the embryo is considered “property” or a “person.” The divorcing couple must also decide if and how to donate or dispose of embryos that they no longer plan to implant. It’s an emotionally contentious process for many couples, and a complicated legal question if they ultimately can’t agree.

Case law on the issue of frozen embryo disposition is emerging very slowly. Generally, the reasoning and guidelines set forth in the existing case law are becoming the standards by which other courts are making decisions.

• Embryos are generally not considered children or property, but rather “special entities” that deserve special respect because of their potential to become human life.

• Whenever possible, the preprocedural consent agreement signed at the time of the procedure should be considered a binding contract if couples cannot reach an agreement about the fate of their embryos.

• In the absence of a consent agreement, the control over the embryos should be given to the party that does not wish to procreate, unless the other party has no other means of becoming a parent.

This last principle is the subject of much debate, stemming from the constitutional principle of a person’s right to privacy. Courts have held that this right encompasses and protects the right of an individual to choose not to have children, and therefore the embryos should not be donated against one of the donor’s will, even though they may not have any financial obligations after donation.

Sofia Vergara famously brought attention to this issue when her ex-boyfriend, with whom she underwent an IVF procedure, filed a lawsuit to prevent the actress from destroying the embryos. The case is ongoing, but raises some complicated and interesting issues.

Georgia Laws on Embryos 

While fertility clinics in Georgia require couples to sign written consent forms before undergoing IVF, Georgia law does not provide standard language that must be included. Furthermore, the special rights afforded to women with fetuses in their bodies do not extend to frozen embryos. The rights of both egg and sperm donors are considered equal. To date, there has not been an appellate case reported in Georgia setting the standard for how frozen embryos should be treated. Additionally, Georgia law has not been able to keep up with the rapid developments in technology, and there is no established Georgia law governing the issues surrounding the transfer and disposition of embryos.

What Should Couples Do?

We advise couples to discuss every possible scenario prior to undergoing IVF. It is important to be on the same page regarding implantation and disposal.

Couples should also ensure that the written consent form signed reflects both partner’s intentions regarding disposal in the case of a death, divorce or change of heart related to parenting.

If these protections are unavailable to you or were not utilized prior to undergoing IVF, our firm has experience in advocating and receiving custody of frozen embryos during a divorce.