Legalese — How a Baby Can Explain Separation of Powers

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Very often, to the layperson, it seems that the law splits hairs so fine they can’t be seen without a microscope.  Sometimes, this is an intellectual exercise that appears to defy logic and reason and, well, our essential sense of right and wrong.  Sometimes, however, if you peel back your gut reaction, there are legitimate constitutional, separation-of-powers issues for doing this.

Take the recent decision in Patton v. Vanderpool, which was issued by the Georgia Supreme Court on October 16, 2017.  In this case, a couple decided to get divorced right after they decided to try for in vitro fertilization with a donor egg and donor sperm.  At the time of the divorce, no one knew that the wife was pregnant and, in fact, there was a line in the order that specifically said she wasn’t and no children were expected.

When she found out later that she was in fact pregnant due to the procedure that took place a few days before the divorce, she asked the Court to reopen the divorce decree and add language that included the child.  There needed to be, she said, provisions regarding visitation and child support.  The husband objected, saying that he didn’t consent for the child to be conceived after the divorce proceedings were initiated, and so any consequences from the wife going ahead were not his to bear, and certainly weren’t his expense.  He was biologically unrelated to the child, and had nothing to do with its conception.  Therefore he should not have sleepless nights and child support as a result.

At issue was O.C.G.A. 19-7-21.  This statute states that there is an irrebuttable presumption of paternity for a child conceived during artificial insemination during a marriage.  Since this statute was passed over 50 years ago, the wife argued that “artificial insemination” included in vitro fertilization, and so the child was a child of the marriage.

The court found that there is a long history of defining artificial insemination as a process in which sperm is introduced into the female reproductive tract.  In vitro fertilization (IVF), however, is the implantation of an already fertilized egg into a woman’s uterus.  Since these were, scientifically, different things, the law that applied to one didn’t necessarily apply to the other.

The wife argued that since in vitro wasn’t even a thing that could be done when the law was passed, it created a ridiculous result to say that IVF didn’t count.  The husband said that if the legislature thought that IVF should count, then the legislature would have added IVF into the statute.

The Court agreed with the husband’s logic.  The legislature had added IVF into other statutes, which means it was aware that IVF was a thing.  The legislature is presumed to know what it is doing (which is a topic for another day) and, according to the “rules of statutory construction” there is a presumption that if the legislature didn’t add in IVF to this statute, that they meant not to add it.

To some, this seems cold and heartless. This man signed up for IVF initially, never formally withdrew his consent (though it is arguable that proceeding with a divorce is a pretty clear signal that you don’t want to have children with someone), and now this poor child will grow up fatherless without any kind of financial support from the only logical person to be considered her father.  Regardless of what you think of the father and his choice not to acknowledge the child as his, the decision makes good sense in a larger, legal way.

Consider this: the legislature could have added IVF and didn’t.  Whether this is because there was a specific decision not to, or an oversight is irrelevant.  IVF is not a part of this law.  If the Court were to add in IVF to the interpretation of the law, the Court will be making a decision about how the law should be, as opposed to what the law is.  Articles I, II, and III of the United States list the Powers available to the Legislative, Executive, and Judicial Branch.  The Legislative Branch exclusively has the power to make law.  The Judicial Branch interprets how the law (made by the Legislative Branch) applies to different real-life situations.  The Judicial Branch can’t make law.  Sometimes, in writing a decision that seems wrong on its face, the Judicial Branch is simply pointing out that perhaps the Legislative Branch should do something about what the law is so that the Courts don’t have to make these kinds of decisions.

Separation of powers is part of the checks and balances that has made our system of government so successful for over 200 years.  It’s important not to wear away the walls between the branches of government if we want it to keep on working.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.

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