CopyCited 26 times | Published | Supreme Court of Georgia | Oct 16, 2017 | 806 S.E.2d 493
HUNSTEIN, Justice.
OCGA §
19-7-21 creates an “irrebuttable presumption” of legitimacy with respect to “[a] 11 children born within wedlock or within the usual period of gestation thereafter who [were] conceived by means of artificial insemination.” (Emphasis suppli...
...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 *254address 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....
...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 SE2d 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 presu...
...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....
...G. M., 988 SW2d 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, *257see Vlandis v. Kline, 412 U. S. 441 (93 SCt 2230, 37 LE2d 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 OCGA §
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....
...of the existing state of the law and enacted [the Act] with reference to it.’ ” (Citation omitted.) Fair v. State,
288 Ga. 244, 252 (702 SE2d 420) (2010). Thus, as late as 2009, *258the 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, C....
...Presiding Judge Christopher J. McFadden dissents. Boggs, J., not participating.
The record suggests that Appellee wanted to have a child but could not undergo the procedure without Appellant’s consent.
Because we conclude that the plain language of OCGA §
19-7-21 has no application here, we pretermit any consideration of the constitutionality of OCGA §
19-7-21.
There is no dispute that the child was born “within the usual period of gestation” following the marriage.
“In vivo” means to “take place in the body,” while “in vitro” means “in glass” and refers to an artificial environment rather than the body....
...In support of her position that “artificial insemination” encompasses “in vitro fertilization,” Appellee points to In re Adoption of a Minor, 29 NE3d 830 (Mass. 2015), a decision out of the highest court in Massachusetts interpreting MGLA 46 § 4B, which is similar to OCGA §
19-7-21....
...ificial insemination, and IVF because, in each scenario, the “volitional actions” of the putative father resulted in the creation of a child). We do not find these decisions persuasive.
Though Appellee may not establish legitimacy through OCGA §
19-7-21, we do not speak to whether Appellee may establish legal paternity through other means, such as OCGA §
19-7-20.
It appears that the General Assembly has been familiar with advances in reproductive technologies since as early as the late 1980s....