A divided Georgia Supreme Court opinion released Monday appears to create a new class of baby: one that may not legally have parents.

The high court said that laws providing for artificial insemination cannot apply to a baby born by in vitro fertilization using donor eggs and donor sperm, because legislators could not possibly have had the newer method in mind when they wrote the statute in 1964.

Bottom line: The baby in this case of first impression can have no legal father.

Justice Carol Hunstein wrote an 11-page opinion saying that the law in question—O.C.G.A. § 19-7-21—creates an “irrebuttable presumption” of legitimacy with respect to all “children born within wedlock or within the usual period of gestation thereafter who [were] conceived by means of artificial insemination.”

“This appeal presents the question of whether that irrebuttable presumption applies to children so conceived by means of in-vitro fertilization,” Hunstein wrote. “We conclude that it does not and reverse the judgment of the superior court.”

The decision overrides Chatham County Superior Court Judge James Bass Jr., who had granted Jocelyn Vanterpool summary judgment in a paternity lawsuit against her ex-husband, David Patton. Just before their divorce became final, she conceived twins through in vitro fertilization, utilizing egg and sperm from anonymous donors. He signed a written consent to the procedure but then later claimed he did so under duress to finalize the divorce. The babies, a boy and a girl, were born premature. Only the girl survived.

Judge Chris McFadden, substituting on the case for Justice Michael Boggs, wrote a 21-page dissent, saying the law was meant to protect babies like this one, referred to in the decision only as “S.”

“The parties have not identified, and I can't think of, any policy reason for choosing to exclude children like S. from the protection of the statute,” McFadden wrote. “On the contrary, the law and policy in this state favor legitimating children.”

Lawyers on both sides agreed the outcome would have been different if the Georgia law in question used the newer umbrella term “assisted reproductive technology”—also called ART. As the law stands, artificial insemination is a term for a specific medical procedure using donor sperm to impregnate a mother. In vitro fertilization (IVF) refers to donor eggs and donor sperms being combined in a lab. Babies born of this method were once called test tube babies. Their biological parentage can be untraceable.

“The result is, these children—in this case and other children—are unable to establish paternity and be legitimated,” the mother's attorney, David Purvis of the Manely Firm's Savannah office, said in an interview Monday.

Purvis said the case demands the Georgia General Assembly's attention. “This is the end result on the judicial side,” Purvis said. “The legislative side has got to amend it, because we are going to have many, many children affected. I don't think it was anyone's intent to leave these children illegitimate.”

The winning lawyer, Richard Sanders of Andrews & Sanders in Savannah, sought to narrow the scope of babies who would be affected.

“I don't read it that expansive,” Sanders said in an interview Monday. “I can see a fact pattern—our fact pattern—where that plays out where there is no father.”

Sanders recalled being asked that question in oral arguments: “My response was, it's no different from any single mother who gets IVF. There is already a huge class of fatherless children out there. It's just we haven't experienced that in the litigation field because there hasn't been a necessity.”

The case is Patton v. Vanterpool, No. S17A0767.