Domestic Relations Adoption: Amend Chapter 8 of Title 19 of the Official Code of Georgia Annotated, Relating to Adoption, So as to Enact the “option of Adoption Act”; Provide a Short Title; Define Certain Terms; Provide That a Legal Embryo Custodian May Relinquish Rights to an Embryo; Provide for Procedures; Provide That a Child Born as a Result of Such Relinquished Embryo Shall Be the Legal Child of the Recipient; Provide for an Expedited Order of Parentage; Amend the Official Code of Georgia Annotated So as to Conform Provisions and Correct Cross-references; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes.

• Jurisdiction: Georgia,United States
• Publication year: 2010
• Citation: Vol. 26 No. 1

Georgia State University Law Review

Volume 26 . ,

Article 5

Issue 1 Fall 2009

10-1-2009

DOMESTIC RELATIONS Adoption: Amend Chapter 8 of Title 19 of the Official Code of Georgia Annotated, Relating to Adoption, so as to Enact the "Option ofAdoption Act"; Provide a Short Title; Define Certain Terms; Provide That a Legal Embryo Custodian May Relinquish Rights to an Embryo; Provide for Procedures; Provide That a Child Born As a Result of Such Relinquished Embryo Shall Be the Legal Child of the Recipient; Provide for an Expedited Order of Parentage; Amend the Official Code of Georgia Annotated so as to Conform Provisions and Correct Cross-

Recommended Citation

Kuntz, Jeff; Thakore, Chittam; and Wang, Chiaman (2009) "DOMESTIC RELATIONS Adoption: Amend Chapter 8 of Title 19 of the Official Code of Georgia Annotated, Relating to Adoption, so as to Enact the "Option of Adoption Act"; Provide a Short Title; Define Certain Terms; Provide That a Legal Embryo Custodian May Relinquish Rights to an Embryo; Provide for Procedures; Provide That a Child Born As a Result of Such Relinquished Embryo Shall Be the Legal Child of the Recipient; Provide for an Expedited Order of Parentage; Amend the Official Code of Georgia Annotated so as to Conform Provisions and Correct Cross-References; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes.," Georgia State University Law Review: Vol. 26: Iss. 1, Article 5.

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References; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes.

JeffKuntz Chittam Thakore Chiaman Wang

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DOMESTIC RELATIONS

Adoption: Amend Chapter 8 of Title 19 of the Official Code of Georgia Annotated, Relating to Adoption, so as to Enact the

"Option of Adoption Act"; Provide a Short Title; Define Certain

Terms; Provide That a Legal Embryo Custodian May Relinquish Rights to an Embryo; Provide for Procedures; Provide That a Child Born As a Result of Such Relinquished Embryo Shall Be the Legal

Child of the Recipient; Provide for an Expedited Order of Parentage; Amend the Official Code of Georgia Annotated so as to

Conform Provisions and Correct Cross-References; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections:

Bill Number: Act Number: Georgia Laws: Summary:

O.C.G.A. §§ 15-11-28 (amended); 198-26 (amended); 19-8-40, -41, -42, -43

(new); 29-2-22 (amended); 49-5-12

(amended) HB 388 171

2009 Ga. Laws 171

The Act permits legal custodians of a human embryo to transfer their rights in the embryo to an intended parent before the transfer of that embryo. To effectuate the transfer of rights in the embryo and any resulting child, the Act requires that the legal custodians and the intended parent enter into a written contract before the embryo is transferred. when such a written contract is in place, the Act provides that a child resulting from the embryo transfer will be presumed to be the child of the intended parent and that parent may petition for an expedited order of adoption or parentage either before or after the child's birth.

60 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:1

Effective Date: July 1, 2009

History

The availability of a wide variety of fertility treatments provides couples struggling with infertility many options to conceive.¹ Many women are finally able to conceive through the use of Assisted Reproductive Technologies, which includes in vitro fertilization (IVF). Through this laboratory procedure, an oocyte (egg) from the intended mother is fertilized by sperm, and the resulting embryo is transferred to the uterus of the intended mother. The use of a donated embryo for the IVF process is an often-successful option for those women for whom conception using their own eggs is not possible.⁴ In this situation, the embryo donor enters into a contractual agreement with the intended recipient whereby she and her partner or husband relinquish their rights to any resulting child, and the intended recipient parents accept all responsibility for that child.⁵

When more viable embryos are produced through an IVF treatment cycle than can be used, the intended parents have the option of freezing these embryos for later use in a process known as cryopreservation.⁶ Should the persons undergoing IVF treatment not require these embryos, the embryos may be donated for adoption.

1. Dep't of Health and Human Servs., Infertility—Frequently Asked Questions, http://www.womenshealth.gov/faq/infertility.pdf (last visited Aug. 17, 2009); see also Georgia Reproductive Specialists, Treatment Options, http://www.ivf.com/grs_treatment_options.php (last visited May 8, 2009).

2. Dep't of Health and Human Servs., supra note 1; see also Georgia Reproductive Specialists, In Vitro Fertilization Program, http://www.ivf.com/grs_treatment_options.php (last visited May 8, 2009).

3. Dep't of Health and Human Servs., supra note 1; see also Georgia Reproductive Specialists, In Vitro Fertilization and Embryo Transfer, http://www.ivf.com/overview.html (last visited May 8, 2009); Georgia Reproductive Specialists, Donor Egg Program, http://www.ivf.com/donor.html (last visited May 8, 2009) [hereinafter Donor Egg Program].

4. See Donor Egg Program, supra note 3.

5. Am. Fertility Ass'n., Handbook—Prospective Donors, http://www.theafa.org/pubs/AFA_Embryo_Donation_Donors.pdf (last visited Aug. 17, 2009). E.g., Georgia Reproductive Specialists, Become an Egg Donor, http://www.ivf.com/grs_become_an_egg_donor.php (follow "Oocyte Donor/Prospective Parent Agreement" hyperlink) (last visited May 8, 2009).

6. Georgia Reproductive Specialists, Human Embryo Cryopreservation, http://www.ivf.com/cryoperm.html (last visited May 8, 2009).

7. E.g., id.

2009] LEGISLATIVE REVIEW 61

The donors typically enter into an agreement with their fertility clinic whereby the embryos are donated to the fertility clinic to be offered for anonymous adoption. Through this agreement, the donors relinquish all rights and claims to the "donated embryos or any pregnancy or offspring that might result from them."⁹ Thus far, the donation of embryos for adoption by other couples has been effectuated through private agreements between the donors, the fertility centers, and the intended parents.¹⁰

To date in Georgia, adoption of a child may not take place until after the child is born.¹¹ Thus, litigation surrounding adoption proceedings has centered upon the validity of the termination of parental rights to a child after the child has been conceived and

12

carried to term by the mother. Some concern exists, however, regarding the potential for litigation resulting from an embryo donor's assertion of parental rights over a child carried to term by one

13

who adopted the embryo. Also, general concerns persist regarding custody battles involving cryopreserved embryos, likely furthered by reports of litigation over embryo custody in divorce suits.¹⁴ Further, a

8. E.g., id.

9. E.g., id.

10. See, e.g., id.

11. The state of Georgia requires that a parent or guardian complete a parental surrender of rights form to effectuate an adoption. This form states, in part: "I, the undersigned, being solicitous that my (male) (female) child, born (insert name of...