Lead Opinion
OCGA § 19-7-21 сreates 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 supplied.) This appeal presents the question of whether that irrebuttable presumption applies to children so conceived by means of in vitro fertilization (“IVF”). We conclude that it does not and reverse the judgment of the superior court.
In January 2014, after approximately three years of marriage, David Patton (“Appellant”) filed a complaint for divorce against Jocelyn Vanterpool, M.D. (“Appellee”). During the pendency of the divorce, the parties consented to Appellee undergoing IVF treatment,
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 thеrapy. “A statute draws its meaning, of course, from its text.” (Citation omitted.) Chan v. Ellis,
presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its “plain and ordinary meaning,” we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.
(Citations and punctuation omitted.) Deal v. Coleman,
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 presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination.” At issue here is the term “artificial insemination,” which is not defined by statute.
In vitro fertilization was first described in the 1970s, see Janet L. Dolgin, The Law Debates the Family: Reproductive Transformations, 7 Yale J. L. & Feminism 37 (1995), and involves “[a] procedure [in] which an egg is fertilized outside a woman’s body and then inserted into the womb for gestation.” Black’s Law Dictionary 956 (10th ed. 2014). See also Stedman’s Medical Dictionary (28th ed.) (online database updated Nov. 2014) (describing IVF as “a process whereby (usually multiple) ova are placed in a medium to which sperm are added for fertilization, the zygote thus produced then being introduced into the uterus with the objective of full-term development”); Gale Encyclopedia of Medicine (2008) (Retrieved October 4,2017 from https ://medical-dictionary, thefreedictionary. com/in+vi tro+fertil-ization) (“In vitro fertilization (IVF) is a procedure in which eggs (ova) from a woman’s ovary are removed. They are fertilized with sperm in a laboratory procedure, and then the fertilized egg (embryo) is returned to the woman’s uterus.”); 8 Attorneys Medical Advisor § 83:14 (“In vitro fertilization (IVF) consists of... fertilization of the oocytes in the laboratory[ ] and the transfer of resultant embryos back to the woman’s uterus.”). Two of the primary stages of the IVF process involve the fertilization of the ovum outside the body and the subsequent transfer of that embryo into the recipient’s uterus. See Marvin A. Milich, In Vitro Fertilization and Embryo Transfer: Medical Technology— Social Values = Legislative Solutions, 30 J. Fam. L. 875, 876 (1991/1992). To summarize, while artificial insemination involves the introduction of sperm to the female reproductive tract to encourage fertilization, IVF involves implanting a fertilized egg into a female; though each procedure aims for pregnancy, the procedures are distinct, and we conclude that the term “artificial insemination” does not encompass IVF. Other courts have reached this same conclusion.
We are unswayed by Appellee’s argument that such a plain-language construction of OCGA § 19-7-21 is unnecessarily restriсtive. While Georgia law favors legitimation, OCGA § 19-7-21 creates an irrebuttable presumption, which is generally disfavored in the law, see Vlandis v. Kline,
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. In May 2009, the General Assembly passed the “Domestic Relations — Guardian — Social Services — Options to Adoption Act,” which amended Chapter 8 of Title 19 to address, among other things, the custody, relinquishment, and adoption of embryos. See Ga. L. 2009, pp. 800-803. OCGA § 19-8-40, which was created by the 2009 Act, defines both embryo and embryo transfer, which “means the medical procedure of physically placing an embryo into the uterus of a female.” OCGA § 19-8-40 (3). As discussed above, “embryo transfer” is a key component of IVF, and the language employed in the definition of “embryo transfer” tracks the standard definition of IVF. See, e.g., Black’s Law Dictionary 956 (10th ed. 2014) (defining IVF as “[a] procedure [in] which an egg is fertilized outside a woman’s body and then inserted into the womb for gestation”).
We presume that, when the General Assembly passed the 2009 Act, it “ ‘had full knowledge of the existing state of the law and enacted [the Act] with reference to it.’ ” (Citation omitted.) Fair v. State,
Judgment reversed.
Notes
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. Black’s Law Dictionary 956 (10th ed. 2014).
Appellee contends that this Court should adopt the reasoning of Maryland’s highest court, which has concluded that the phrase “artificial insemination” is “ambiguous” because there аre numerous ways in which artificial insemination may be accomplished. See Sieglein v. Schmidt, 136 A3d 751, 759-761 (Md. 2016). The Sieglein decision explains that sperm maybe introduced via intrafollicular insemination (injecting semen directly into an ovarian follicle), intraperitoneal insemination (injecting semen into the peritoneal cavity), intratubal/intrafallopian insemination (injecting semen into the fallopian tube) or intrauterine insemination (injecting semen directly into the uterus). Id. at 760, n. 13. The Maryland court also noted that artificial insemination could be used with sperm from a spouse (homologous insemination), commonly known as Artificial Insemination by Husband (“AIH”), or from a donor (heterologous insemination), otherwise known as Artificial Insemination by Donor (“AID”).
We cannot agree that a decades-old term is rendered ambiguous simply because the procеdure may utilize donor sperm or various locations in the female reproductive tract; irrespective of the use of donor sperm or the location of injection, sperm is being introduced to the female reproductive tract for the purpose of encouraging in vivo fertilization.
In support of her position that “artificial insemination” encompasses “in vitro fertilization,” Appellee points to In re Adoption of a Minor,
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. In 1988, the Senate considered a bill that would have amended Chapter 7 of Title 19 to address, among other things, IVF. See SB 493 (1988 Session). In the 1995-1996 session, the House entertained similar legislation. See H.B. 1073 (1996 Session). Likewise, other portions of the 1964 Act have been amended since the development of IVF technology and continue to include the term “artificial insemination” without expansiоn. See OCGA § 31-10-9 (amended 2005); OCGA § 43-34-37 (amended 2010).
As we have said before, “courts cannot construe [statutes] to force an outcome that the legislature did not expressly authorize.” Turner v. Ga. River Network,
Dissenting Opinion
dissenting.
OCGA § 19-7-21 contains a latent ambiguity. The ambiguity arose because the General Assembly failed to anticipate subsequent advances in medical technology when it described the class of children under the statute’s protection. In resolving that ambiguity we are required to apply a rule that is in our current Code, was in our first Code, can be traced back to Blackstone’s Commentaries on the Law of England, and so was part of the “common law and statutes of England in force prior to May 14,1776 [that, in 1784,] were adopted in this [s] tate by statute.” Hannah v. State,
That rule directs us to the conclusion that the intention of the General Assembly was to protect children like S., the child in this case. So I respectfully dissent.
1. Resolution of the latent ambiguity in OCGA § 19-7-21 under OCGA § 1-3-1 (a).
Georgia law has long recognized latent ambiguitiеs. “[T]his court has approved Lord Bacon’s definition of a latent ambiguity, as one which seems certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter, outside of the deed, that breedeth the ambiguity.” Citizens & Southern Nat. Bank v. Clark,
As for interpretations of statutes, our case law recognizes that sometimes “the facts of [a] case[ ] ... reveal a latent ambiguity in the language of [a statute].” Daugherty v. Norville Indus.,
Turning to the statute before us, OCGA § 19-7-21, it was enacted in 1964. In distinguishing the children who are under its protection from children who are not, it references only children conceived of artificial insemination, which is a type of assisted reproductive technology Id. S. was conceived by means of in vitro fertilization, another type of assisted reproductive technology that was not developed until a decade later. The statute therefore contains a latent ambiguity: into which category does a child like S. fall? Is a child like S. under the statute’s protection or not? The statute must be construed to resolve that latent ambiguity.
Our interpretation of statutes is guided by a series of statutes. The first of these, OCGA § 1-3-1, provides in part:
(a) In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. Grammatical errors shall not vitiate a law. A transposition of words and clauses may be resorted to when a sentence or clause is without meaning as it stands.
(b) In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.
OCGA § 1-3-1 directs us to perform two distinct inquiries. Subsection (a), as noted above, is our codification of the mischief rule; it directs us to find the intention of the General Assembly by examining “the old law, the evil, and the remedy” Subsection (b) directs our attention to the text, the words in the statute.
The textual analysis required by subsection (b) leads us only to the conclusion that, when the legislature enacted the statute before us, it failed to anticipate medical advances that would be made more than a decade later. But that should not be the end of our analysis. It has long been understood that the nature of our role in interpreting statutes requires more. “The very office of construction is to work out, from what is expressly said and done, what would have been said with regard to events not definitely before the minds of the parties, if those events had been considered.” Oliver Wendell Holmes, Jr., The Common Law 237 (1881). “As nearly as we сan, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final.” Guiseppi v. Walling, 144 F2d 608, 624 (2d Cir. 1944) (L. Hand, J., concurring), aff’d sub nom. Gemsco, Inc. v. Walling,
The analysis required by subsection (a) clearly directs us to the conclusion that S. does come under the protection of OCGA § 19-7-21. The old law was that a child’s legitimacy or illegitimacy at birth turned on biological connection to the father. The evil, or mischief, arose from the fact that artificial insemination, like in vitro fertilization, could use donated sperm: a father therefore could consent to the procedure but later deny the child. The remedy was to authorize binding written consent from the father. S. was conceived of donated sperm. Before her conception, the parties executed a written consent to assure her legitimacy
Construing OCGA § 19-7-21’s reference to artificial insemination to encompass subsequently-developed methods of assisted reproductive technology is consistent with the way Georgia courts have applied the mischief rule in other cases. The Court of Appeals’ decision in Daugherty v. Norville Indus., supra,
The majority infers a contrary intent from the General Assembly’s failure to amend OCGA § 19-7-21, and in particular from its failure to pass proposed legislation that would have done so. But while inferences about intent behind legislative inaction are no more categorically improper than inferences about the intent behind enacted legislation, inferences from inaction are inherently weaker. The legislative process is difficult by design. It requires an expenditure of finite resources, time, energy, and political capital, to get a bill out оf committee and onto the floor of both houses. So when an appellate court frustrates an imperfectly-expressed legislative intent, it is not a satisfactory answer that they can pass another bill. The necessary resources may no longer be available.
And an inference from inaction is particularly unpersuasive here. Before today OCGA § 19-7-21 had been cited in only two published Georgia opinions, one of them a dissent. Brown v. Gadson,
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. On the contrary, the law and policy in this state favor legitimating children. See Miller v. Miller,
The majority’s construction of the statute provides legitimacy to children conceived of one form of assisted reproductive technology but withholds it from children conceived of another. This reading does not take into account OCGA § 1-3-l’s requirement that we examine “the old law, the evil, and the remedy.” Under that requirement, we must construe the statute before us to extend its protection to S. and children like her. To hold otherwise would frustrate the manifest intention of the General Assembly.
2. Status of OCGA § 1-3-1 (a).
The analysis above presupposes that OCGA § 1-3-1 (а) is still good law — that it still means what is says and says what it means. Acasual observer might think it self-evident that OCGA § 1-3-1 (a) is still good law. Its roots are extraordinarily deep, and we have not struck it down.
But that proposition is no longer self-evident. Nationally, the mischief rule has become controversial. It is condemned in a popular and influential treatise under the general heading, “Thirteen Falsities Exposed,” and under the topic heading, “The false notion that the purpose of interpretation is to discover intent.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 341, 391 (2012).
That characterization is audacious. Other treatises often suggest that a case or line of cases is wrongly decided or identify the author’s preference among conflicting lines of cases. It is one thing for a treatise tо be, as Reading Law declares itself, “unapologetically normative.” Scalia & Garner, Reading Law at 9. But it is something else entirely to declare that duly enacted statutes and case law binding within its jurisdiction are not law. Reading Law can be read to imply that such statutes and case law should simply be ignored.
As for the merits of the mischief rule, Reading Law argues it is a falsity because its foundation is unsound. Reading Law makes some cogent arguments about the perils and possible excesses of inquiries into legislative intent. But its central argument is that the very idea of intention of a legislature — as well as of parties to a contract — is incoherent, that a search for legislative intention is a “search for the nonexistent.” Scalia & Garner, Reading Law at 394.
To make this point, Reading Law offers a hypothetical about contract cоnstruction. Reading Law describes negotiations over a contract clause setting a deadline: one side prefers forty-five days; the other prefers five; they compromise on “a reasonable time.” Scalia & Garner, Reading Law at 391. According to Reading Law, “The lawyer on one side privately told the client that a court would probably say that 30 days would be commercially reasonable; the other lawyer privately told the client that a court would probably say that 48 hours would be commercially reasonable (a week at the outside).” Id. at 391-392. This, we are told, illustrates the proposition that the idea of the necessity of a meeting of the minds is a “myth.” Id. at 392.
I question the soundness of this argument. The imagined advice would be unsound. The hypothetical parties compromised on — their minds met on — an indeterminate deadline. Each would be free to argue; neither could be sure of the outcome. More fundamentally, Reading Law’s argument conflates the parties’ negotiating objectives with their eventual agreement.
Regardless of the soundness of that argument, the more salient question is whether Reading Law’s conclusion can be reconciled with the Georgia law we are duty-bound to administer. It cannot. Georgia law differs in a number of respects from Reading Law’s prescriptions. See Cork, Reading Law in Georgia at 18 (detailing those differences and identifying as among the most prominent, Reading Law’s rejection of legislative intent and its narrow version of the absurdity doctrine). Indeed, for contracts (the specific subject of the above hypothetical), our General Assembly has еmbraced the idea of intention even more emphatically than for statutes. In the interpretation of contracts, OCGA § 13-2-3 declares, “[t]he cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” See also OCGA § 13-2-2 (rules of interpretation of contracts, referring three times to the parties’ “intention” or “intended” meaning); § 13-2-4 (addressing intention of one party known to the other).
Westlaw searches indicate that OCGA § 1-3-1 (a), OCGA § 13-2-3, or the principle set out in those Code sections has been cited hundreds, if not thousands, of times by this Court and by our Court of Appeals.
The statutes that direct us to consider the intention of the legislature and of the parties to a contract were in the first Georgia Code. Current OCGA § 1-3-1 (a) was Section 5 of the Code of 1863. Current OCGA § 13-2-3 was Section 2719 of that Code. And the mischief rule is older still. A few years after that first Code was adopted, this Court wrote: “The Code directs that statutes be construed with reference to the intention of the legislature, and that the old law, the mischief and the remedy, be considered to arrive at that intention (Code, § 4, par. 9); and such was the rule long before there was any code of laws compiled for this state.” Everett v. Planters’ Bank,
Indeed, thе line of Georgia authority for the mischief rule stretches back to Blackstone’s Commentaries on the Laws of England and so, as noted above, the mischief rule was a part of the deposit of English common law on which the law of this state was founded. (The rule did not originate with Blackstone; its first appearance was apparently in Heydon’s Case, 3 Co Rep 7a, 76 ER 637 (1584).)
The mischief rule’s earliest recorded appearance in Georgia law was in the second volume of the Georgia Reports. Booth v. Williams,
But the mischief rule became settled law in Georgia only after vigorous debate. Less than six months after our opinion in Booth, Justice Lumpkin criticized the mischief rule in Ezekiel v. Dixon,
Seven years latertherulewascodifiedinwhatisnowOCGA § 1-3-1.
For the next century-and-a-half the mischief rule was settled law, albeit cautiously applied. For example in 1914 we wrote:
Seeking secret legislative meanings at variance with the language used is a perilous undertaking which is quite as apt to lead to an amendment of the law by judicial construction as it is to arrive at the actuаl thought in the legislative mind. 25 R. C. L. 961, § 217. But where an ambiguity exists either because of uncertainty in the meaning of words, conflicts with previous laws, or conflicts between different, clauses in the same statute, courts should look beyond the verbiage and discover the intent. While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent will prevail over the literal import of the words.
Carroll v. Ragsdale,
And in 1936, we wrote:
Though we distinctly disavow any intentiоn to place our decision upon the spirit of the law — for we are endeavoring to confine ourselves to the proper construction of the letter of the law [at issue] considered as a whole[ ] — still there are cases in which the following language taken from Plowden’s Commentaries has been properly applicable: “It is not the words of the law, but the internal sense of it, that makes the law; and our law consists of two parts, viz., of body and soul; the letter of the law is the body of the law, and the sense and reason of the law are the soul of the law, quia ratio legis est anima legis. And the law may be resembled to a nut, which has a shell and a kernel within; the letter of the law represents the shell, and the sense of it the kernel; and as you will be no better for the nut if you make use only of the shell, sо you will receive no benefit from the law if you rely upon the letter; and as the fruit and profit of the nut lie in the kernel and not in the shell, so the fruit and profit of the law consist in the sense more than in the letter. And it often happens, that when you know the letter, you know not the sense, for sometimes the sense is more confined than the letter, and sometimes it is more large and extensive.”
Gazan v. Heery, supra,
In addition to Plowden’s metaphor of a nut, we have adopted Justice Oliver Wendell Holmes’s less terrestrial metaphor: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner,
But Justice Lumpkin was not compelled to surrender his individual opinions. And neither are we. We do not have the authority to ignore the law of this state. But we have the power to change it. We can adopt Chief Judge Dillard’s concurring opinion in BellSouth Telecommunications, LLC v. Cobb County,
[O]ur appellate courts should stop referencing altogether the ethereal fiction of “legislative intent” in the context of statutory interpretation. A judge should not care about what any legislator intended but did not expressly provide for in the statutory text.... [T]he General Assembly can no more tell the judiciary how to generally interpret the law than we can direct them how to legislate.
(Emphasis omitted.) So we can strike down the statutes that adopt the mischief rule. We can strike down the ones that embrace the idea of intent of the parties to a contract. And, with the stroke of a pen, we can disapprove every one of the hundreds, if not thousands of Georgia cases that hold with those statutes. All that we can do. But before we do, what else might fall should give us pause. The roots of that rule and of that idea run deep and wide. It is difficult, to foresee, for example, the consequences of undermining every contract case that references intent or meeting of the minds. And undermining the contract and statutory construction cases that reference intent may have implications for trust and estate law in which intent is central. See OCGA § 53-4-55.
Rather than grasp that nettle, we have taken an indirect course. Consistent with Reading Law’s declaration that invocations оf the mischief rule are not law, but merely repetitions of a false notion, our recent opinions have instead undermined OCGA § 1-3-1 (a). Those opinions suggest that the mischief rule has never been a part of our law:
But “the legislature’s intent is discerned from the text of a duly enacted statute and the statute’s context within the larger legal framework.” State v. Riggs,301 Ga. 63 , 67 (2) (799 SE2d 770 ) (2017). “[W]hen judges start discussing not the meaning of the statutes the legislature actually enacted, as determined from the text of those laws, but rather the unexpressed ‘spirit’ or ‘reason’ of the legislation, and the need to make sure the law does not cause unreasonable consequences, we venture into dangerously undemocratic, unfair, and impractical territory.” Merritt v. State,286 Ga. 650 , 656 (630 SE2d 835 ) (2010) (Nahmias, J., concurring specially) (punctuation omitted). See also Malphurs v. State,336 Ga. App. 867 , 871-872 (785 SE2d 414 ) (2016) (“[Ojur concern is with the actual text of statutes, not the subjective statements of individual legislators expressing their personal intent in voting for or against a bill”); Walters v. State,335 Ga. App. 12 , 15 n. 3 (780 SE2d 720 ) (2015); Day v. Floyd County. Bd. of Ed.,333 Ga.App. 144 , 150-151 (775 SE2d 622 ) (2015) (Dillard, J., concurring fully and specially); Rutter v. Rutter,316 Ga. App. 894 , 896 (1) n.5 (730 SE2d 626 ) (2012); Keaton v. State,331 Ga. App. 14 , 26 n.17 (714 SE2d 693 ) (2011) (Blackwell, J., concurring in part and dissenting in part).
Gibson v. Gibson,
In taking that indirect course we have suggested that one can reconcile OCGA § 1-3-1 (a) with the undertaking in Gibson, supra, and the other recent cases in its line to narrowly confine the scope of consideration of the intention of the General Assembly. See also BellSouth Telecommunications, LLC,
The only fair reading of Gibson and the similar cases it cites is that the mischief rule has been quietly excised from our law, that we no longer inquire into “the old law, the evil, and the remedy,” and that while OCGA § 1-3-1 (a) is still on the books, it is a dead letter. That is not how we should operate. We should either strike down OCGA § 1-3-1 (a), as well as the statutes that enforce the intent of parties to a contract, and let fall all that must fall with them — or we should faithfully administer them.
I would faithfully administer them — albeit with the perils and temptations of such analysis firmly in mind. Administering OCGA § 1-3-1 (a) here requires us to construe OCGA § 19-7-21 so that S. comes under its protection. So I would affirm.
A Westlaw search for “legislature,” “legislative,” “General Assembly,” or “parties” in the same sentence as “intent” or “intended” brings up over 9,500 cases.