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In re C. B.

Court of Appeals of Georgia, Fifth Division

December 30, 2019

In the Interest of C. B., a child.

         

         Embryo transfer; order of parentage. Clayton Superior Court. Before Judge Carter.

         COUNSEL:

          Mann & Moran, Teresa A. Mann; Lawson & Thornton, George O. Lawson, Jr., for appellant.

          Anene Farrey & Associates, O. Anene Farrey, for appellee.

          Judges: MCFADDEN, Chief Judge. McMillian, P. J., and Senior Appellate Judge Herbert E. Phipps concur.

          OPINION

Page 518

          McFadden, Chief Judge.

          During their marriage, Winston and Tonya Barksdale had a child through in vitro fertilization (IVF). They used an egg (also called an oocyte) from an anonymous donor, which was fertilized with Winston Barksdale's sperm and then placed in the uterus of Tonya Barksdale, who gave birth to the child. Later, in divorce proceedings before the Superior Court of Fulton County, Winston Barksdale asserted that Tonya Barksdale was not entitled to custody of the child because she was not the child's biological, legal, or adoptive parent. Tonya Barksdale then petitioned for and obtained, in a separate proceeding before the Superior Court of Clayton County, an "order of parentage" declaring that she was the child's legal parent.

          This is Winston Barksdale's discretionary appeal from the order of parentage and the trial court's denial of his subsequent motion for a new trial or, alternatively, to set aside that order. He argues that the trial court erred in issuing the order of parentage pursuant to the Option of Adoption Act, OCGA � 19-8-40 et seq., but we find that the Option of Adoption Act applies to this case and authorized the order. He argues that the Clayton County court should have transferred the case to the Fulton County court as part of the parties' divorce proceedings rather than exercising jurisdiction over the petition, but we find that the trial court's exercise of jurisdiction was appropriate. Finally, he argues he was not given proper notice of the order-of-parentage proceeding because Tonya Barksdale did not identify him as a respondent in her petition, but we find no abuse of discretion in the trial court's decision not to grant a new trial or set aside the order for this reason. So we affirm.

          1. The Option of Adoption Act authorized the trial court to issue the order of parentage.

          The Option of Adoption Act provides a means of establishing the legal parentage of a child resulting from an embryo transfer, which is[353 Ga.App. 364] a “ key component of IVF,” Patton v. Vanterpool, 302 Ga. 253, 257 (806 S.E.2d 493) (2017), and which the Act defines as “ the medical procedure of physically placing an embryo into the uterus of a female.” OCGA � 19-8-40 (3). The Act provides circumstances under which a “ recipient intended parent may petition the superior court for an expedited order of adoption or parentage.” OCGA � 19-8-42 (a). If the petition

meets the criteria required by [the Option of Adoption Act ], an expedited order of adoption or parentage shall be issued and shall be a final order. Such order shall terminate any future parental rights and responsibilities of any past or present legal embryo custodian or gamete donor in a child which results from the embryo transfer and shall vest such rights and responsibilities in the recipient intended parent.

OCGA � 19-8-43. The Act gives the trial court discretion to determine if the criteria for an order are met, providing that “ [i]n the interest of justice, to promote the stability of embryo transfers, and to promote the interests of children who may be born following such embryo transfers, the court in its discretion may waive such ...


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