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Patton v. Vanterpool

Supreme Court of Georgia

October 16, 2017



         OCGA § 19-7-21 creates an "irrebuttable presumption" of legitimacy with respect to "[a]ll children born within wedlock or within the usual period of gestation thereafter who [were] conceived by means of artificial insemination." (Emphasis supplied.) This appeal presents the question of whether that irrebuttable presumption applies to children so conceived by means of in-vitro fertilization ("IVF"). We conclude that it does not and reverse the judgment of the superior court.

         In January 2014, after approximately three years of marriage, David Patton ("Appellant") filed a complaint for divorce against Jocelyn Vanterpool, M.D. ("Appellee"). During the pendency of the divorce, the parties consented to Appellee undergoing IVF treatment, [1] which would eventually utilize both donor ova and donor sperm; on November 10, 2014, Appellee traveled to the Czech Republic for the IVF procedure. Four days later, on November 14, 2014, a final judgment and decree of divorce was entered in the divorce action. The divorce decree incorporated the parties' settlement agreement, which reflects that, at the time of the agreement, the parties neither had nor were expecting children produced of the marriage.

         Approximately 29 weeks later, on June 6, 2015, Appellee gave birth as a result of the November 2014 IVF procedure. Appellee subsequently moved the superior court to set aside the decree of divorce, seeking to include the minor child in the divorce agreement; this motion was denied. Appellee thereafter instituted a paternity action against Appellant, alleging that he gave written, informed consent for IVF and that OCGA § 19-7-21 created an irrebuttable presumption of paternity; Appellee also sought child support. In response, Appellant argued that he did not meaningfully consent to IVF and that, even if he did, OCGA § 19-7-21 is unconstitutional. The trial court sided with Appellee, granting her summary judgment on the issue of paternity. In September 2016, this Court granted Appellant's application for discretionary appeal, asking the parties to address whether OCGA § 19-7-21 applies to children conceived by means of IVF and, if so, whether OCGA § 19-7-21 is unconstitutional.[2]

         We are tasked with interpreting the text of OCGA § 19-7-21 to discern whether the irrebuttable presumption created with respect to children conceived by means of "artificial insemination" extends to children conceived by IVF therapy. "A statute draws its meaning, of course, from its text." (Citation omitted.) Chan v. Ellis, 296 Ga. 838, 839 (770 S.E.2d 851) (2015). Under our well-established rules of statutory construction, we

presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its "plain and ordinary meaning, " we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

         (Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (751 S.E.2d 337) (2013). Though we may review the "text of the provision in question and its context within the larger legal framework to discern the intent of the legislature in enacting it, " Scott v. State, 299 Ga. 568, 571 (788 S.E.2d 468) (2016), where the statutory text is "clear and unambiguous, " we attribute to the statute its plain meaning, and our search for statutory meaning ends. See Deal, 294 Ga. at 173. With these principles in mind, we begin our analysis, applying a de novo standard of review to the judgment of the trial court. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2) (691 S.E.2d 218) (2010).

         OCGA § 19-7-21 concerns the parent-child relationship generally, stating as follows: "All children born within wedlock or within the usual period of gestation thereafter who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination." At issue here is the term "artificial insemination, " which is not defined by statute.[3]Artificial insemination, which has been in use since the late 18th century and has been so named since the early 19th century, see Kara W. Swanson, Adultery By Doctor: Artificial Insemination, 1890-1945, 87 Chi.-Kent L. Rev. 591 (2012), has been consistently defined as the "introduction of semen into the uterus or oviduct by other than natural means . . . in order to increase the probability of conception." Webster's Third International Dictionary 124 (1967). See also Black's Medical Dictionary 65 (26th ed. 1965) (defining artificial insemination as "the introduction of semen into the vagina by artificial means"); Stedman's Medical Dictionary (28th ed.) (updated Nov. 2014) (defining artificial insemination as "introduction of semen into the vagina other than by coitis"); 59 Am. Jur. 2d Parent and Child § 7 ("Artificial insemination is the introduction of semen into the female reproductive tract by mechanical means in order to effect pregnancy without sexual intercourse."); 8 Attorneys Medical Advisor § 83:12 ("Artificial insemination . . . refers to the artificial injection of semen into the female's reproductive tract."). Thus, as the procedure has been understood for over 150 years, see, e.g., J. Marion Sims, Clinical Notes on Uterine Surgery: With Special Reference to the Management of the Sterile Condition 372 (1866), artificial insemination involves the introduction of semen to the female reproductive tract to further the purpose of in vivo[4] fertilization of an ovum. See In re Baby Doe, 353 S.E.2d 877, 878 (S.C. 1987) ("Artificial insemination is the introduction of semen into the reproductive tract of a female by artificial means."). We conclude, given the history and well-established meaning and use of the term "artificial insemination, " that the term is not ambiguous as it is used in OCGA § 19-7-21.[5] We now must address whether artificial insemination includes IVF.

         In-vitro fertilization was first described in the 1970s, see Janet L. Dolgin, The Law Debates the Family: Reproductive Transformations, 7 Yale J. L. & Feminisim 37 (1995), and involves "[a] procedure [in] which an egg is fertilized outside a woman's body and then inserted into the womb for gestation." Black's Law Dictionary 956 (10th ed. 2014). See also Stedman's Medical Dictionary (28th ed.) (online database updated Nov. 2014) (describing IVF as "a process whereby (usually multiple) ova are placed in a medium to which sperm are added for fertilization, the zygote thus produced then being introduced into the uterus with the objective of full-term development"); Gale Encyclopedia of Medicine (2008) (Retrieved October 4 2017 from vitro緪墳櫘) ("In vitro fertilization (IVF) is a procedure in which eggs (ova) from a woman's ovary are removed. They are fertilized with sperm in a laboratory procedure, and then the fertilized egg (embryo) is returned to the woman's uterus."); 8 Attorneys Medical Advisor § 83:14 ("In vitro fertilization (IVF) consists of . . . fertilization of the oocytes in the laboratory[] and the transfer of resultant embryos back to the woman's uterus."). Two of the primary stages of the IVF process involve the fertilization of the ovum outside the body and the subsequent transfer of that embryo into the recipient's uterus. See Marvin A. Milich, In Vitro Fertilization and Embryo Transfer: Medical Technology - Social Values = Legislative Solutions, 30 J. Fam. L. 875, 876 (1991/1992). To summarize, while artificial insemination involves the introduction of sperm to the female reproductive tract to encourage fertilization, IVF involves implanting a fertilized egg into a female; though each procedure aims for pregnancy, the procedures are distinct, and we conclude that the term "artificial insemination" does not encompass IVF. Other courts have reached this same conclusion.[6] See Finley v. Astrue, 270 S.W.3d 849, 850 n. 2 (Ark. 2008) (recognizing a distinction between artificial insemination and IVF); In re O.G.M., 988 S.W.2d 473 (II) (C) (Tex. App. 1st Dist. 1999) (concluding that a statute regarding artificial insemination was inapplicable to case involving IVF).

         We are unswayed by Appellee's argument that such a plain-language construction of OCGA § 19-7-21 is unnecessarily restrictive. While Georgia law favors legitimation, OCGA § 19-7-21 creates an irrebuttable presumption, which is generally disfavored in the law, see Vlandis v. Kline, 412 U.S. 441 (93 S.Ct. 2230, 37 L.Ed.2d 63) (1973), and our interpretation maintains the bounds of the plain language of the statute. Further, the irrebuttable presumption of legitimacy in OCGA § 19-7-21 is an exception to the general rule, found in § 19-7-20 (b), that legitimacy may be disputed, and an expansive reading of OCGA § 19-7-21 would allow the exception to swallow the rule.[7]

         Appellee also contends that when the General Assembly enacted OCGA § 19-7-21 in 1964, that body could not have conceived of the advent of IVF (and related medical advancements) and that a plain-language construction of OCGA § 19-7-21 is at odds with the plain purpose of the statute, which is to legitimate children born by means of reproductive technology. This argument, too, fails.

         Although OCGA § 19-7-21 was enacted over 50 years ago - at a time when IVF and various assisted reproductive technologies were not yet developed - recent amendments to other portions of Title 19 make plain that the General Assembly is now well acquainted with the developments in reproductive medicine. In May 2009, the General Assembly passed the "Domestic Relations - Guardian - Social Services - Options to Adoption Act, " which amended Chapter 8 of Title 19 to address, among other things, the custody, relinquishment, and adoption of embryos. See Ga. L. 2009, pp. 800-803. OCGA § 19-8-40, which was created by the 2009 Act, defines both embryo and embryo transfer, which "means the medical procedure of physically placing an embryo into the uterus of a female." OCGA § 19-8-40 (3). As discussed above, "embryo transfer" is a key component of IVF, and the language employed in the definition of "embryo transfer" tracks the standard definition of IVF. See, e.g., Black's Law Dictionary 956 (10th ed. 2014) (defining IVF as "[a] procedure [in] which an egg is fertilized outside a woman's body and then inserted into the womb for gestation").[8]

         We presume that, when the General Assembly passed the 2009 Act, it "'had full knowledge of the existing state of the law and enacted the [the Act] with reference to it.'" (Citation omitted.) Fair v. State, 288 Ga. 244, 252 (702 S.E.2d 420) (2010). Thus, as late as 2009, the General Assembly was aware of the existing language of OCGA § 19-7-21 and was familiar with advances in reproductive technology, yet chose to leave the statute unchanged. Accordingly, this is not a case in which the General Assembly has failed to anticipate scientific and medical advancements, but, instead, the General Assembly has chosen not to act; we must, therefore, presume that OCGA § 19-7-21 remains the will of the legislature.[9]

         Judgment reversed.

          Hines, CJ, Melton, PJ, Benham, Nahmias, Blackwell, Peterson, and Grant, JJ, concur Judge Christopher J. McFadden dissents. Boggs, J., not participating.


         OCGA § 19-7-21 contains a latent ambiguity. The ambiguity arose because the General Assembly failed to anticipate subsequent advances in medical technology when it described the class of children under the statute's protection. In resolving that ambiguity we are required to apply a rule that is in our current Code, was in our first Code, can be traced back to Blackstone's Commentaries on the Law of England, and so was part of the "common law and statutes of England in force prior to May 14, 1776 [that, in 1784, ] were adopted in this [s]tate by statute." Hannah v. State, 212 Ga. 313, 321-322 (6) (92 S.E.2d 89) (1956) (citations omitted). Often called the "mischief rule, " as Blackstone's Commentaries refer to "the old law, the mischief, and the remedy, " see Charles M. Cork, III, Reading Law in Georgia 6-8, (2014), that rule is now codified at OCGA § 1-3-1 (a): "In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy."

         That rule directs us to the conclusion that the intention of the General Assembly was to protect children like S., the child in this case. So I respectfully dissent.

         1. Resolution of the latent ambiguity in OCGA § 19-7-21 under OCGA § 1-3-1 (a).

         Georgia law has long recognized latent ambiguities. "[T]his court has approved Lord Bacon's definition of a latent ambiguity, as one which seems certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter, outside of the deed, that breedeth the ambiguity." C & S Nat. Bank v. Clark, 172 Ga. 625, 630 (158 SE 297) (1931) (citation and punctuation omitted). In interpretations of contracts, the possibility of latent ambiguities is recognized by statute. OCGA § 13-2-2 (1).

         As for interpretations of statutes, our case law recognizes that sometimes "the facts of [a] case[ ] . . . reveal a latent ambiguity in the language of [a statute.]" Daugherty v. Norville Indus., 174 Ga.App. 89, 90 (329 S.E.2d 202) (1985). In such cases, "[o]ur duty is to consider the results and consequences of any proposed construction and, based upon the particular facts and circumstances of the case, not so construe a statute as will produce unreasonable or absurd consequences not contemplated by the legislature." Id. (citing State v. Mulkey, 252 Ga. 201, 204 (312 S.E.2d 601) (1984)). See Randolph County v. Bantz, 270 Ga. 66, 66-67 (508 S.E.2d 169) (1998) (rejecting Randolph County's argument that it could require its chief magistrate to perform, without compensation, the duties of a clerk of court because the statute that entitled chief magistrates to additional compensation for such services applied only to counties not authorized by local law to hire a clerk, whereas Randolph County was authorized to hire a clerk but preferred to have its chief magistrate do the work for free); Sirmans v. Sirmans, 222 Ga. 202, 204 (149 S.E.2d 101) (1966) (trial court erred in dismissing answer and holding defendant to be in default; although, due to clerk's mistake in calculating costs, defendant did not pay full court costs to open default, it was not legislature's intent to deprive defendant of ability to present defense over "trifling mistake"); Transworld Financing Corp. v. Coastal Tire & Container Repair, LLC, 298 Ga.App. 286, 288-289 (1) (680 S.E.2d 143) (2009) (declining to construe term "called for, " in law allowing repairman to charge storage fees for vehicles unless "called for" by owner, to extend to owner's "call" to promise to retrieve vehicle; preferring a "reasonable and sensible interpretation to carry out the legislative intent" over the "literal meaning" of the terms); Gazan v. Heery, 183 Ga. 30, 42-43 (187 SE 371) (1936) (local legislation requiring the chief judge of the municipal court of Savannah to have practiced law for five years or more held not to prevent the elevation of an associate judge of that court who had served for over ten years, but before that had practiced law for less than two years). See generally Cork, Reading Law in Georgia at 43-47 (discussing cases in which Georgia courts applied mischief rule to construe statutes with latent ambiguities and noting similarity of other cases applying mischief rule in conjunction with absurdity doctrine).

         Turning to the statute before us, OCGA § 19-7-21, it was enacted in 1964. In distinguishing the children who are under its protection from children who are not, it references only children conceived of artificial insemination, which is a type of assisted reproductive technology. Id. S. was conceived by means of in vitro fertilization, another type of assisted reproductive technology that was not developed until a decade later. The statute therefore contains a latent ambiguity: into which category does a child ...

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