‘Right to Not Procreate’ Is Central Issue in Georgia Divorce Appeal Over Frozen Embryo

Newnan attorney Delia Crouch asked the Georgia Court of Appeals to weigh the right to choose (or refuse) to reproduce this Wednesday, as a divorce case in a county southwest of metro Atlanta took an unexpected turn into previously uncharted territory.

A Coweta County trial court had awarded receiver-appellee and ex-wife Lauri Smith the rights to an embryo she created with respondent-appellant and ex-husband Jonathan Smith. Jonathan Smith, however, does not want to have a child with his ex-wife. According to Crouch, “Although [Lauri Smith] testified that she would take full responsibility [for the child], Georgia law does not allow a parent to not support his child.”

Crouch noted two errors in the trial court’s decision-making process:

• Failing to enforce an agreement the parties made that provided for disposing of the embryo through donation in the event of a disagreement.
• Erroneously applying a balancing test of the parties’ interests where they failed to consider the appellant’s right to avoid procreation and parenthood with a woman he wasn’t married to.

Prior to the divorce, the parties had frozen embryos together for potential future use. When doing so, the pair had signed off on a contract delineating what to do with the embryos under certain circumstances.

According to Crouch, the language of the contract was such that if either Smith had disappeared, become incapacitated, in the event of any unforeseen circumstances, or, if the Smiths couldn’t come to a decision on the fate of the stored embryos, they would be donated. In this context, donated embryos are given to another couple who wants to become pregnant.

However, petitioner-appellee attorney David Webster said when interpreting the context of the contract the Smiths signed off on, divorce is not the same as a disagreement and should be interpreted separately—in this case, by the trial court.

David A. Webster. (Courtesy photo)

“[The contract] makes no mention of divorce, even though that’s a common instance of failure to act jointly and well-recognized,” Webster said. “If the parties had intended that the language in [the contract] cover the situation in divorce, they could have said so and would’ve said so.”

Judge Trenton Brown III asked whether Webster thought the parties anticipated the possibility of this sort of outcome. Webster replied that the whole purpose of the section was to enumerate what to do in the event of unanticipated outcomes. He also noted that the contract does cover divorce in another paragraph but never linked it to the provision specifying what to do in the event of a disagreement.

Crouch, on the other hand, said divorce fits into the context of an inability to disagree. Furthermore, she argued that the case law that the trial court cited concerned disputes of monetary value, as opposed to “the significant ramifications of forcing a person into parenthood with a woman to whom he was not married” and “weighing the parties’ interest in procreation or not to procreate.”

Judge E. Trenton Brown III, Georgia Court of Appeals. (Courtesy photo)

Webster disagreed with this final concept Crouch raised. Instead, he said the desire to not procreate was a strong interest that required a balancing test, but that there is no right to not procreate.

Brown asked Crouch why, then, the trial court’s order wasn’t supported by the record. According to Crouch, at trial, the appellee “argued strenuously and repeatedly that this was a human life, that she should give life to it and that it was a forced abortion.

Crouch went on to say that “This was post-[Dobbs v. Jackson], so the arguments that were being made to the trial court were highly emotional and somewhat polarizing. If you ask me why I think the judge [ruled this way], I don’t think any superior court judge wants to be on the front page of the paper saying, ‘I took away this woman’s last best chance.”

In addition to Brown, the case was heard by Presiding Judge Anne Elizabeth Barnes and Judge Todd Markle. The original case was presided over by Judge Travis Sakrison in the Superior Court of Coweta County, No. 22CV45. Additional counsel included John Cunningham for the respondent-appellant and Desiree Duke for the petitioner-appellee.

The case is Jonathan Smith v. Lauri Smith, No. A23A0896, in the Georgia Court of Appeals.

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