In-Vitro Fertilization Inconceivable to Legislature

On Oct. 16 the Georgia Supreme Court ruled that the statute covering children “conceived by means of artificial insemination” doesn’t cover children born by means of in-vitro fertilization (IVF). Why? Well, for one thing, the statute was enacted in 1964, and the court says that IVF was unknown until the 1970s. So in 1964 the legislature couldn’t conceive of IVF.

The statute creates an irrebuttable presumption of legitimacy for all children born during wedlock or the usual gestation period thereafter who were conceived through artificial insemination, provided both spouses consented to the procedure in writing.

David and his wife Jocelyn consented to IVF in writing. Four days before a divorce decree was entered, Jocelyn underwent the procedure using donor ova and donor sperm, and 29 weeks later Baby S was born. Jocelyn filed a paternity action against David and sought child support. She won summary judgment on the paternity issue.

When David appealed, the Georgia Supreme Court ruled in his favor, holding that while the legislature meant to protect children born through artificial insemination, it could not have meant to protect those born through IVF because it was unaware of IVF. The court reasoned that if the legislature had later wanted to cover IVF children, it would have amended the statute to cover them. But it didn’t.

The result is that David doesn’t have to pay child support and Baby S doesn’t have a father—at least not one anybody can identify.


The case is Patton v. Vanterpool, No. S17A0767 (Ga., Oct. 16, 2017).

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