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IV. PARENTAL SUPPORT OBLIGATION
XI. UNLAWFUL ADVERTISEMENT/UNLAWFUL INDUCEMENTS
XIII. DECLARATORY JUDGMENTS/EQUITY
XIV. MEDICAL AUTHORIZATIONS FOR MINOR CHILD
XVI. PROPOSED HOUSE BILL 1073 (1996)
XVII. PROPOSED SENATE BILL 451 (1998)
THE LEGAL STATUS OF SURROGACY IN GEORGIAWhat follows is a thumbnail sketch of the "law," such as it is, in the state of Georgia concerning surrogacy and third party assisted reproductive technology (A.R.T.). Hopefully it provides some illumination in an area not distinguished by its clarity.
Updated February 19, 1998
Simply put, there is none. The only instance in which the author has been able to denote any anticipation that an infertile couple would have an interest in a child to be born in which one of the married couple did not have a genetic tie, lies in the area of traditional artificial insemination.
O.C.G.A. 19-7-21, entitled "When Children Conceived by Artificial Insemination Legitimate" holds:
"All children born within wedlock or within the usual period of gestation or after who have been conceived by means of artificial insemination are irrebutably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination."
This presumes that the husband is the infertile member of the couple, and that donated semen would be utilized to impregnate his wife. It does not anticipate a scenario where the wife is infertile and a third party surrogate has been located who agrees to be impregnated with the fertile husband's sperm. As the husband and the female surrogate are not married, the child would be considered to be born out of wedlock.
While House Bill Number 1073 (which follows at the end of this status report) concerning assisted reproductive technology and its use in Georgia failed to pass the 1996 session of the Georgia legislature. Senate Bill 451 is presently pending, and is not as comprehensive as the previous session's House Bill 1073. Both are predicated upon Florida's enacted statues, which are far more comprehensive, including Florida's treatment of artificial insemination (traditional) surrogacy, which Florida dubs "pre-planned adoptions."
The author has twice testified before the Senate Judiciary Committee and Sub-committee, yet it is uncertain whether further action shall be taken during this legislative session.
The existing law does not anticipate gestational surrogacy, artificial insemination surrogacy, egg (ova) donation, surrogacy contracts, nor hearings to establish parental rights in an infertile couple (except for O.C.G.A. 19-7-21, above). Nonetheless, the law presently in effect in the state of Georgia is not cognizant of advances in medical technology (such as egg (ova) extraction, in vitro fertilization, and embryo implantation). It further does not anticipate the family building alternatives for which some of its citizens are opting (artificial insemination surrogacy) which are decidedly more"low tech."
This is not to say that legal recognition of these family building options is not available; rather, it requires innovation on the part of the legal practitioner and some degree of providence (the author has served as counsel to infertile couples who have successfully utilized artificial insemination surrogacy, gestational surrogacy, and egg (ova) donation, and had the children born of such procedures recognized by the courts as their own children with birth certificates issuing accordingly).
The current statutory and case law in the state of Georgia contemplates traditional family building options. As such, its emphasis is historical, rather than forward looking.
Georgia's traditional approach includes:
Georgia law presumes that a delivering mother's husband (either at the time of conception or at the time of delivery of the child) is the father of the child. O.C.G.A. 19-7-20(a). Mims v. The State, 43 Ga. App. 100, Boone v. Boone, 225 Ga. 610.
However, this presumption may be rebutted under O.C.G.A. 19-7-20(b), where there is clear proof to the contrary. In such instance, the child would be considered "born out of wedlock" and "illegitimate" if the biological father is not the husband of the delivering female. Wilkins v. Department of Human Resources, 255 Ga. 230, 232, 233.
A father of a child sired out of wedlock may render the child legitimate by petitioning the superior court. If the court declares the child to be legitimate, it may then inherit from the father in the same manner as if born in lawful wedlock, and upon notice to the mother, the court may further establish the duties of the father to support the child. O.C.G.A. 19-7-22. A petition to establish the paternity of the child may also be brought by the mother of the child. O.C.G.A. 19-7-43(a)(2).
In both gestational surrogacy and artificial insemination surrogacy, the law would, without a dispositive court proceeding, consider the child to be born out of wedlock.
Georgia law considers the delivering female to be the mother of the child.
IV. PARENTAL SUPPORT OBLIGATION
Both biological parents of an "illegitimate child" (or a "child born out of wedlock," as defined by the case law) have a support obligation to the child. Failure to support a child could support a criminal abandonment action, even if another individual is caring for the child. In re: M.A.F., 254 Ga. 748, 750.
It is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until that child reaches the age of majority, except to the extent that the duty of one parent is otherwise further defined by court order. O.C.G.A. 19-7-24.
Additionally, the father of a child born "out of wedlock" has a prenatal support obligation to the child to be born. Coxwell v. Matthews, 263 Ga. 444.
As a consequence, the genetic parents in a surrogacy context have support obligations to the child, both at birth and prenatally. Paradoxically, if the surrogate is married and if no corrective court proceedings are undertaken, the law presumes surrogate's husband is the father and bound by the support obligation to the child. The same holds true for the surrogate.
Under O.C.G.A. 19-7-25, only the "mother" of the child "born out of wedlock" is entitled to the child's custody, unless the father legitimates the child as provided in O.C.G.A. 19-7-22. Otherwise, the mother (presumptively the delivering female) may exercise all parental power over the child.
In such instances, the child would remain under the control of its "mother" (presumed to be the delivering female) until the age of majority. In re: M.A.F., 254 Ga. 748, 751.
The father of the child (born "out of wedlock") "gains from his biological connection with the child an opportunity interest to develop a relationship with this child which is constitutionally protected . . . It is an interest which (the biological father not married to the delivering female) has a right to pursue through his commitment to becoming a father in a true relational sense as well as a biological sense. Absent abandonment of his interest, the state may not deny a biological father a reasonable opportunity to establish a relationship with his child . . . If timely and diligently pursued, and not abandoned, this opportunity interest will lead (a biological father not married to delivering female) to enjoy the benefits of custody and entitle him to equal treatment under law accorded other parents." In re: Baby Girl Eason, 257 Ga. 292.
Therefore, the surrogate would have the exclusive obligation and control over the child, unless the genetic and biological father undertook (through court action) to establish his rights to the child.
If the mother or father of a child, which is either legitimate or born out of wedlock, abandons the child who is in a dependent condition, the abandoning parent commits the crime of child abandonment. When the abandoning parent does not furnish sufficient food, clothing, or shelter for the needs of the child, the child shall be considered to be in a dependent condition. O.C.G.A. 19-10-1.
Child abandonment shall be punishable as a misdemeanor, unless the abandoning parent leaves the state while the abandoned child is in a dependent condition. In that event, the abandoning parent shall be guilty of a felony, punishable by imprisonment of not less than one nor more than three years.
Parentage of the child, by the father, shall be determined by blood test. O.C.G.A. 19-10-1(f). A female charged with abandoning a child may contend that she is not the mother of the child which has been abandoned. O.C.G.A. 19-10-1(I).
Though a child is born out of wedlock, the father may be required by the court to pay the reasonable medical expenses paid by or incurred on behalf of the mother due to the birth of the child. O.C.G.A. 19-10-1(g).
A salient rationale in a court proceeding to establish the genetic parent in the infertile couple is to avoid commission of these crimes.
All children born in wedlock or within the usual period of gestation thereafter are legitimate. O.C.G.A. 19-7-20(a).
The term "child born out of wedlock" means:
1) A child whose parents are not married when the child is born or who do not subsequently intermarry;
2) A child who is the issue of adulterous intercourse of the wife during wedlock; or
3) A child who is not legitimate based upon disproof of legitimacy under O.C.G.A. 19-7-20.
A husband of a pregnant surrogate or the genetic father may contest the legitimacy of a child born during the course of wedlock or within the usual period of gestation, although there is a strong presumption of legitimacy. O.C.G.A. 19-7-20(b).
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. O.C.G.A. 19-7-21.
As a consequence, the surrogate and her husband may not consent to artificial insemination within the meaning of O.C.G.A. 19-7-21, or they shall be deemed irrebuttably to be the child's parents.
Only licensed physicians and surgeons may administer or perform artificial insemination. Anyone else who attempts or performs artificial insemination shall be guilty of a felony, punishable by one to five years imprisonment. O.C.G.A. 43-34-42(a).
A licensed physician or surgeon may not delegate the administration or performance of artificial insemination to other non-physicians. Opinion of the Attorney General 82-87.
If an inseminating physician secures the written authorization, signed by both the husband and wife to whom he administers artificial insemination, the physician shall have no civil liability to the husband, wife, or child to be born, except for that physician's negligence. O.C.G.A. 43-34-42(b).
If a mother is married either at the time of conception or at the time of birth, the name of her husband shall be entered on the birth certificate as the father of the child unless paternity has ben determined otherwise by a court having jurisdiction, in which case the name of the father as determined by the court shall be entered. O.C.G.A. 31-10-9(1).
If the mother is not married to the father at either the time of conception or at the time of birth, the name of the putative father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as father. O.C.G.A. 31-10-9(2).
In any case in which paternity of the child is determined by a court of competent jurisdiction, the name of the father and the surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court. O.C.G.A. 31-10-9(3).
If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate. O.C.G.A. 31-10-9(4).
Hence, it is quite appropriate for a court to determine paternity in the surrogacy context in order that the birth certificate issues appropriately. In artificial insemination surrogacy, an initial birth certificate may issue showing genetic father and surrogate as parents. After a step-parent adoption proceeding, a substitute birth certificate issues, showing the infertile couple as parents of the child.
As an alternative means of establishing maternity and paternity, the natural parents of a child are not precluded from adopting their own child. McDonald v. Hester, 115 Ga. App. 740.
While many natural parents in a surrogacy situation do not wish to adoption their own genetic offspring, and while this procedure subjects the natural parents to an investigation by the Department of Human Resources or other agency (O.C.G.A. 19-8-16), and while this avenue requires a finding by the trial court that the adoption is in the best interest of the child (O.C.G.A. 19-8-18(b)), it is nonetheless available as a last resort.
Each form of adoption is dealt with separately: Departmental agency adoptions are addressed at O.C.G.A. 19-8-4; independent adoptions are controlled by O.C.G.A. 19-8-5; step-parent adoptions fall under the auspices of O.C.G.A. 19-8-6; adoptions by relatives must subscribe to the standards found at O.C.G.A. 19-8-7; and domestication of foreign divorce decrees are governed by O.C.G.A. 19-8-8.
In artificial insemination surrogacies, the author has found success in establishing the father's rights through a paternity hearing, and then replacing the genetic mother/surrogate with the father's wife through a step-parent adoption pursuant to O.C.G.A. 19-8-6.
Step-parent adoptions generally require:
1) Surrender of parental rights by the surrogate. O.C.G.A. 19-8-6(a)(1);
2) Informing the surrogate of her rights to withdraw the surrender within 10 days of her signing the surrender pursuant to O.C.G.A. 19-8-9;
3) The securing of an acknowledgment signed by the surrogate that she has surrendered her parental rights in accordance with O.C.G.A. 19-8-26;
4) The obtaining of an affidavit from the surrogate which informs (in addition to other information) whether the biological father of the child has contributed to its support during her pregnancy or hospitalization, or made an attempt to legitimate the child, along with all financial assistance received by surrogate in connection with her pregnancy, the birth of the child, or the arranging for the placement of the child for adoption in accordance with O.C.G.A. 19-8-26(h).
Financial disclosures of the adoptive parents are required under O.C.G.A. 19-8-13, along with an affidavit from the adoptive parents' attorney, disclosing all sums paid or promised to that attorney (to the extent that these amounts exceed $500).
In adoption, there is always the risk a court would not find it in the child's best interests to have either or both of the infertile couple declared parents of the child. Furthermore, the affidavit disclosing support payments must withstand the scrutiny of the Unlawful Inducements Statute (O.C.G.A. 19-8-24).
XI. UNLAWFUL ADVERTISEMENT/UNLAWFUL INDUCEMENTS
Georgia's adoption code proscribes unauthorized contacts in attempts to secure children for adoption, and it furthermore proscribes amounts to be paid as "inducements to parents to part with their children." These provisions certainly apply in the adoption context, and they are broad enough to apply in the surrogacy context.
The code provision, found at O.C.G.A. 19-8-24, is as follows:
"(a) It shall be unlawful for any person, organization, corporation, hospital, or association of any kind whatsoever which has not been established as a child-placing agency by the department to:
(1) Advertise, whether in a periodical, by television, by radio, or by any other public medium or by any private means, including letters, circulars, handbills, and oral statements, that the person, organization, corporation, hospital, or association will adopt children or will arrange for or cause children to be adopted or placed for adoption; or
(2) Directly or indirectly hold out inducements to parents to part with their children.
As used in this subsection, "inducements" shall include any financial assistance, either direct or indirect, from whatever source, except payment or reimbursement of the medical expenses directly related to the mother's pregnancy and hospitalization for the birth of the child and medical care for the child." O.C.G.A. 19-8-24(a)(1) and (2).
(b) Any person who violates subsection (a) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not to exceed $10,000.00 or imprisonment for not more than ten years, or both, in the discretion of the court.
(c) (1) Paragraph (1) of subsection (a) of this Code section shall not apply to communication by private means, including only written letters or oral statements, by an individual seeking to:
(A) Adopt a child or children; or
(B) Place that individual's child or children for adoption,whether the communication occurs before or after the birth of such child or children.(2) Paragraph (1) of subsection (a) of this Code section shall not apply to any communication described in paragraph (1) of this subsection which contains any attorney's name, address, telephone number, or any combination of such information and which requests any attorney named in such communication to be contacted to facilitate the carrying out of the purpose, as described in subsections (A) or (B) of paragraph (1) of this subsection, of the individual making such personal communication."
This statute has been upheld in a recent constitutional challenge, where a used automobile was offered to a mother in exchange for physical custody and control of her child. Douglas v. State, 263 Ga. 748.
While the used car/child swap may seem bizarre (other than sewing up "Mother of the Year" accolade for this enterprising individual) and inapplicable to surrogacy, in point of fact it poses a significant impediment.
It is clearly applicable in artificial insemination surrogacy, where the surrogate is the genetic mother who will "part with her child." In the compassionate surrogate context, few infertile couples anticipate a surrogate will actually suffer the necessary expenses of a pregnancy. Yet the attorney general has ruled that payment of $300 in lost wages to an expectant mother of a child to be placed for adoption would violate the statute. U86-21.
The statute may also bar general advertisement to locate artificial insemination surrogates. However, a countervailing notion for required pregnancy costs for the actual genetic parents in a surrogacy lies in their prenatal and post birth support obligations to the child.
As a general proposition, parties can privately agree to engage in, or undertake actions, except to the extent that the purpose of the contract is to conduct an immoral or illegal action or to the extent that such a contract would contravene public policy.
A contract to do an immoral or illegal thing is void. If the contract is severable, however, the part of the contract which is legal will not be invalidated by the part of the contract which is illegal. O.C.G.A. 13-8-1.
A contract which is against the policy of the law can not be enforced. Contracts deemed contrary to public policy include, but are not limited to, contracts of maintenance. O.C.G.A. 13-8-2.
These provisions are applicable to the surrogacy context, as surrogacy contracts for gestational surrogacy, artificial insemination surrogacy, and egg (ova) donation have not been, to the knowledge of the author, specifically upheld or prohibited in reported cases of the Georgia appellate courts.
If a contract were drafted which contravened any of the provisions of Georgia law listed above, it would be illegal and unenforceable. Furthermore, it is possible that the courts of the state might declare certain acts envisioned under a surrogacy contract as being against the public policy and correspondingly void. See customary contractual issues in "Checklist on the Law of Surrogacy" in this Web site.
The author has represented numerous couples in drafting of gestational surrogacy contracts, artificial insemination contracts, and egg donation contracts, and in conducting of judicial hearings which result in declaration of paternity, maternity, parental rights, authorization to consent to medical treatment, and the appropriate issuance of birth certificates. However, none of these results nor surrogacies involving other attorneys have been challenged before a trial or appellate court. Therefore, this remains an unsettled area of the law.
XIII. DECLARATORY JUDGMENTS/EQUITY
Declaratory judgments are legal proceedings designed to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. O.C.G.A. 9-4-1.
The superior courts of the state of Georgia also have equity jurisdiction. Equity seeks to do complete justice. Hence, having the parties before the court rightfully, the court will proceed to give full relief to all parties in reference to the subject matter of the action.
In conjunction with paternity hearings and step-parent adoption proceedings in the artificial insemination surrogacy context, the author has utilized both declaratory judgments and principles of equity to afford the appropriate relief for infertile couples, surrogates, surrogates' husbands, and the children to be born and actually born of surrogacy agreements from inappropriate or incomplete presumptions under Georgia law.
XIV. MEDICAL AUTHORIZATIONS FOR MINOR CHILD
In the absence of unavailability of a living spouse, any parent is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law, which may be suggested, recommended, prescribed, or directed by a duly licensed physician, for and on behalf of the parent's minor child. O.C.G.A. 31-9-2(a)(2).
Parents are liable for the medical expenses of their minor children. Georgia Farm Bureau Mutual Insurance Company v. Calhoun, 127 Ga. App. 213, Southern Railway Company v. Neely, 101 Ga. App. 488.
These are considerations which should be addressed both in surrogacy contracts, as well as in confirming judicial proceedings.
Surrogacy is problematic, but attainable under current Georgia law. House Bill No. 1073, which follows and which was not voted upon in the 1996 Georgia legislative session, would alleviate many unsettled areas. Senate Bill No. 451, pending in the 1998 session, would accomplish more of the same, although it is less comprehensive than the previous House Bill No. 1073.
Written by: MARK A. JOHNSON
April 1996 - Updated February 19, 1998
Mark A. Johnson, P.C.
166 Anderson Street, SE
Suite 109
Marietta, GA 30060
Phone: (770) 218-9446
Fax: (770) 218-1094Email: mjohnson@surrogacylaw.com
NOTE: THE OBSERVATIONS ABOVE ARE RESTRICTED SOLELY TO THE STATE OF GEORGIA, AS OF THE DATE WRITTEN. THE LISTING IS BY NO MEANS EXHAUSTIVE, NOR TAILORED TO THE PARTICULAR FACTS OF ANY GIVEN SITUATION.ANY REVIEWER OR POTENTIAL USER OF THIS INFORMATION IS ACTIVELY ENCOURAGED TO SEEK COMPETENT LEGAL COUNSEL WHO IS LICENSED TO PRACTICE LAW IN REVIEWER'S STATE OF RESIDENCE.
THE AUTHOR IS NOT QUALIFIED TO COMMENT ON THE LAW OF ANY STATE OTHER THAN GEORGIA.
BY MAKING THIS INFORMATION AVAILABLE, THE AUTHOR IS NOT ESTABLISHING A LAWYER-CLIENT RELATIONSHIP WITH THE REVIEWER.
XVI. PROPOSED HOUSE BILL 1073 (1996)
H.B. No. 1073 By: Representatives Ashe of the 46th and Trense of the 44th
A BILL TO BE ENTITLED AN ACT To amend Chapter 7 of Title 19 of the Official Code of Georgia Annotated, relating to the parent and child relationship generally, so as to provide for the legal status of certain children conceived by means of in vitro fertilization or from donated eggs, sperm, or preembryos; to define certain terms; to provide for the relinquishment of right by the donor of eggs, sperm, or preembryos; to provide for contracts between commissioning couples and gestational surrogates; to provide for restrictions on compensation for donations of eggs, sperm, or preembryos; to provide for restrictions on compensation to gestational surrogates; to provide for expedited confirmation of the parental status of the commissioning couple; to provide for notice and a hearing; to provide for issuance of a new birth certificate for such child; to provide for closing of such records; to provide for disposition of eggs, sperm, and preembryos under specified conditions; to provide for restrictions son the rights of inheritance of children born after the death of the donor of such eggs, sperm, or preembryos; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA; SECTION 1. Chapter 7 of Title 19 of the Official Code of Georgia Annotated, relating to the parent and child relationship generally, is amended by adding at the end of said chapter a new Article 4 to read as follows:
"ARTICLE 4 19-7-70.
As used in this article, the term:
(1) 'Assisted reproductive technology' means those procreative procedures which involve the laboratory handling of human eggs, sperm, or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.
(2) 'Commissioning couple' means the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.
(3) 'Egg' means the unfertilized female reproductive cell.
(4) 'Fertilization' means the initial union of an egg and sperm.
(5) 'Gestational surrogacy' means a state that results from a process in which a commissioning couple's eggs or sperm, or both, are mixed in vitro and the resulting preembryo is implanted within another woman's body.
(6) 'Gestational surrogacy contract' means a written agreement between the gestational surrogate and the commissioning couple.
(7) 'Gestational surrogate' means a woman who contracts to become pregnant by means of assisted reproductive technology without the use of an egg from her body.
(8) 'Gamete intrafallopian transfer' means the direct transfer of eggs and sperm into the fallopian tube prior to fertilization.
(9) 'Implantation' means the event that occurs when a fertilized egg adheres to the uterine wall for nourishment.
(10) 'In vitro' refers to a laboratory procedure performed in an artificial environment outside a woman's body.
(11) 'In vitro fertilization embryo transfer' means the transfer of an in vitro fertilized preembryo into a woman's uterus.
(12) 'Preembryo' means the product of fertilization of an egg by a sperm until the appearance of the embryonic axis.
(13) 'Pronuclear stage transfer' or 'zygote intrafallopian transfer' means the transfer of an in vitro fertilized preembryo into the fallopian tube before cell division takes place.
(14) 'Sperm' means the male reproductive cell.
(15) 'Tubal embryo transfer' means the transfer of a dividing, in vitro fertilized preembryo into the fallopian tube.
19-7-71.
(a) Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife, provided that both husband and wife have consented in writing to the artificial or in vitro insemination.
(b) Except in the case of gestational surrogacy, any child born within wedlock who has been conceived by means of donated eggs or preembryos shall be irrebuttably presumed to be the child of the recipient gestating woman and her husband, provided that both parties have consented in writing to the use of donated eggs or preembryos.
19-7-72.
The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.
19-7-73.
(a) Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate. A contract for gestational surrogacy shall not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple are legally married and are both 18 years of age or older.
(b) The commissioning couple shall enter into a contract with a gestational surrogate only when, within reasonable medical certainty as determined by a physician licensed under Chapter 34 of Title 43:
(1) The commissioning mother cannot physically gestate a pregnancy to term;
(2) The gestation will cause a risk to the physical health of the commissioning mother; or
(3) The gestation will cause a risk to the health of the fetus.
(c) A gestational surrogacy contact must include the following provisions:
(1) The commissioning couple agrees that the gestational surrogate shall be the sole source of consent with respect to clinical intervention and management of the pregnancy;
(2) The gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health;
(3) The gestational surrogate agrees to relinquish any parental rights upon the child's birth and to proceed with the judicial proceedings prescribed under Code Section 19-7-74; and
(4) The commissioning couple agrees to accept custody of and to assume full parental rights and responsibilities for the child immediately upon the child's birth, regardless of any impairment of the child.
(d) As part of the contract, the commissioning couple may agree to pay only reasonable living, legal, medical, psychological, and psychiatric expenses of the gestational surrogate that are directly related to prenatal, intrapartal, and postpartal periods.
19-7-74.
(a) Within three days after the birth of a child delivered by a gestational surrogate, the commissioning couple shall petition a court of competent jurisdiction for an expedited affirmation of parental status.
(b) After the petition is filed, the court shall fix a time and place for hearing the petition, which may be immediately after the filing of the petition. Notice of hearing shall be given as prescribed by the rules of civil procedure, and service of process shall be made as specified by law for civil actions.
(c) Upon a showing by the commissioning couple, the child, or the gestational surrogate that privacy rights may be endangered, the court may order the names of the commissioning couple, the child, or the gestational surrogate, or any combination thereof, to be deleted from the notice of hearing and from the copy of the petition attached thereto, provided that the substantive rights of any person will not thereby be affected.
(d) Notice of the hearing shall be given by the commissioning couple to:
(1) The gestational surrogate;
(2) The treating physician of the assisted reproductive technology program; and
(3) Any party claiming paternity.
(e) All hearings held in proceeding sunder this Code section shall be held in closed court without admittance of any person other than essential officers of the court, the parties, witnesses, and any persons who have received notice of the hearing.
(f) The commissioning couple or their legal representative shall appear at the hearing on the petition. At the conclusion of the hearing, after the court has determined that a binding and enforceable gestational surrogacy contract has been executed pursuant to Code Section 17-7-72, and that at least one member of the commissioning couple is the genetic parent of the child, the court shall enter an order stating that the commissioning couple are the legal parents of the child.
(g) When at least one member of the commissioning couple is the genetic parent of the child, the commissioning couple shall be presumed to be the natural parents of the child.
(h) Within 30 days after entry of the order, the clerk of the court shall prepare a certified statement of the order for the state registrar of vital records on a form provided by the registrar. The court shall thereupon enter an order requiring the Department of Human Resources to issue a new birth certificate naming the commissioning couple as parents and requiring the department to seal the original birth certificate.
(I) All papers and records pertaining to the affirmation of parental status, including the original birth certificate, are confidential and subject to inspection only upon order of the court. The court files, records, and papers shall be indexed only in the name of the petitioner, and the name of the child shall not be noted on any docket, index, or other record outside the court file.
19-7-75.
(a) A commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple's eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance. Absent a written agreement:
(1) Any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm;
(2) Decision making authority regarding the disposition of preembryos shall reside jointly with the commissioning couple; and
(3) In the case of the death of one member of the commissioning couple, any eggs, sperm, or preembryos shall remain under the control of the surviving member of the commissioning couple.
(b) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman's body shall not be eligible for a claim against the decedent's estate unless the child has been provided for by the decedent's will."
SECTION 2. All laws and parts of laws in conflict with this Act are repealed.
XVII. PROPOSED SENATE BILL 451 (1998)
SB 451 98 LC 19 3629
SENATE BILL 451 By: Senators Brown of the 26th, Thomas of the 10th, Stokes of the 43rd and Blitch of the 7th
A BILL TO BE ENTITLED AN ACT To amend Chapter 7 of Title 19 of the Official Code of Georgia annotated, relating to the parent and child relationship generally, so as to provide for gestational surrogacy contracts; to provide definitions; to provide expedited affirmation of parental status for gestational surrogacy; to provide for related matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: SECTION 1. Chapter 7 of Title 19 of the Official Code of Georgia Annotated, relating to the parent and child relationship generally, is amended by adding at the end thereof a new article, to be designated Article 4, to read as follows:
"ARTICLE 4 19-7-60.
As used in this article, the term:
(1) 'Assisted reproductive technology' means those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.
(2) 'Commissioning couple' means the intended mother and father of a child who is to be conceived by means of assisted reproductive technology using the egg or sperm of one or both of the intended parents.
(3) 'Egg' means the unfertilized female reproductive cell.
(4) 'Fertilization' means the initial union of an egg and sperm.
(5) 'Gestational surrogate' means a woman who contracts to become pregnant by means of assisted reproductive technology without the use of an egg from her body.
(6) 'Gestational surrogacy' means a state that results from a process in which a commissioning couple's egg or sperm, or both, is mixed in vitro and the resulting preembryo is implanted within another woman's body.
(7) 'Gestational surrogacy contract' means a written agreement between the gestational surrogate and the commissioning couple.
(8) 'Sperm' means the male reproductive cell.
19-7-61.
(a) Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate. If the gestational surrogate is legally married, then such person's spouse shall be made a party to such contract. A contract for gestational surrogacy shall not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple is legally married and both persons are 18 years of age or older.
(b) Except as provided in subsection (c) of this Code section, under the terms of the contract, the commissioning couple shall agree to accept custody of and to assume full parental rights and responsibilities for the child immediately upon the child's birth regardless of any impairment of the child.
(c) The terms of the contract shall provide for whether the gestational surrogate or the commissioning couple shall assume parental rights and responsibilities for the child if it is determined that neither member of the commissioning couple is the genetic parent of the child.
19-7-62.
(a) Prior to or within three days after the birth of a child delivered of a gestational surrogate, the commissioning couple shall petition a court of competent jurisdiction for an expedited affirmation of parental status.
(b) After the petition is filed, the court shall fix a time and place for hearing the petition, which hearing may be immediately after the filing of the petition. Notice of the hearing shall be given as prescribed by the rules of civil procedure, and service of process shall be made as specified by law for civil actions.
(c) Upon a showing by the commissioning couple, the child, or the gestational surrogate that privacy rights may be endangered, the court may order the names of the commissioning couple, the child, or the gestational surrogate, or any combination thereof to be deleted from the notice of the hearing and the copy of the petition attached thereto, provided that the substantive rights of any person will not thereby be affected.
(d) Notice of the hearing shall be given by the commissioning couple to:
(1) The gestational surrogate;
(2) The treating physician who is affiliated with the assisted reproductive technology program; and
(3) Any party claiming parental rights.
(e) All hearings held in proceedings under this Code section shall be held in closed court without admittance of any person other than essential officers of the court, the parties, witnesses, and any persons who have received notice of the hearing.
(f) The commissioning couple or their legal representative shall appear at the hearing on the petition. At the conclusion of the hearing, after the court has determined that a binding and enforceable gestational surrogacy contract has been executed pursuant to Code Section 19-7-61 and that at least one member of the commissioning couple is the genetic parent of the child, the court shall enter an order stating that both members of the commissioning couple are the legal parents of the child.
(g) When at least one member of the commissioning couple is the genetic parent of the child, both members of the commissioning couple shall be presumed to be the natural parents of the child.
(h) Within 30 days after entry of the order, the clerk of the court shall prepare a certified statement of the order for the state registrar of vital statistics on a form provided by the registrar. The court shall thereupon enter an order requiring the Department of Human Resources to issue a birth certificate or new birth certificate, if necessary, naming each member of the commissioning couple as parents of the child and requiring the department to seal the original birth certificate, if any.
(i) All papers and records pertaining to the affirmation of parental status, including the original birth certificate if a new birth certificate was ordered pursuant to subsection (h) of this Code section, are confidential and exempt from the provisions of Code Section 50-18-70 and are subject to inspection only upon order of the court. The court's files, records, and papers shall be indexed only in the name of the petitioner, and the name of the child shall not be noted on any docket, index, or other record outside of the court's file."
SECTION 2. All laws and parts of laws in conflict with this Act are 18 repealed.
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