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Surrogacy May Complicate Divorce in Georgia

It goes without saying that many couples begin the process of growing their family with the intention to remain married and raise their children together. However, it is often hard to predict whether a couple many divorce or separate in the future, or when that divorce such a divorce or separation may occur relative to the birth of a child. With this being said, a couple's use of assisted reproductive technologies such as intrauterine insemination, in vitro fertilization, freezing sperm, eggs, or embryos for future use, or surrogacy may raise several legal questions and complications in the event of divorce. Surrogacy in particular has the potential to raise several legal complications due to questions surrounding the relationship of the child to the intended parents.

How should child custody be determined in a divorce case where the couple is expecting a child via surrogacy, and the child will likely not be born prior to the divorce being finalized? Does the genetic relationship between the intended parents and the child matter? If so, in traditional surrogacy cases, is the father automatically entitled to sole custody to the exclusion of the intended mother because he is the only intended parent with a biological connection to the child? Should the intended mother, who may have no biological connection to the child, be obligated to pay child support? Can the surrogate intervene in the divorce action to petition for custody rights? It is questions such as these that exhibit how surrogacy may potentially complicate Georgia divorce.

The questions posed above also exhibit why it is extremely important to have a written and detailed agreement documenting each party's intentions prior to entering into a surrogacy arrangement or any type of third-party assisted reproduction arrangement. Such an agreement should also contemplate what would occur in the event the intended parents separate or divorce.

If you are contemplating surrogacy, or if you have already taken advantage of other forms of assisted reproductive technologies and are now considering divorce, please contact a member of our Atlanta Divorce Team. We will provide you with the assistance and information you need to navigate the Georgia divorce process.


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