There are no provisions in Georgia law or reported or published cases dealing with the issue of surrogacy. However, there are statutory provisions regarding the legitimacy of children conceived by artificial insemination, the rights and duties of parents over children born out of wedlock and the registration of births.
O.C.G.A.§ 19-7-21, entitled “When Children Conceived by Artificial Insemination Legitimate” states:
“All children born within wedlock or within the usual period of gestation or after who have been conceived by means of artificial insemination are irrebutably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination.”
The term “child born out of wedlock” means:
1) A child whose parents are not married when the child is born or who do not subsequently intermarry;
2) A child who is the issue of adulterous intercourse of the wife during wedlock; or
3) A child who is not legitimate based upon disproof of legitimacy under O.C.G.A.§ 19-7-20.
According to O.C.G.A.§ 19-7-20(a) all children born in wedlock and within the usual period of gestation thereafter are legitimate. However, this presumption may be rebutted where there is clear proof to the contrary. In such instance, the child would be considered “born out of wedlock” and “illegitimate” if the biological father is not the husband of the delivering female.
According to O.C.G.A. § 19-7-22 a father of a child born out of wedlock may render the child legitimate by petitioning the superior court. If the court declares the child to be legitimate, it may then inherit from the father in the same manner as if born in lawful wedlock, and upon notice to the mother, the court may further establish the duties of the father to support the child. Under O.C.G.A. § 19-7-43(a)(2) a petition to establish the paternity of the child may also be brought by the mother of the child.
According to O.C.G.A. § 19-7-24 it is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child until that child reaches the age of majority, except to the extent that the duty of one parent is otherwise further defined by court order.
Under O.C.G.A. § 19-7-25, only the “mother” of the child “born out of wedlock” is entitled to the child’s custody, unless the father legitimates the child as provided in O.C.G.A.§19-7-22. Otherwise, the mother may exercise all parental power over the child.
According to O.C.G.A. § 19-10-1 if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, he or she shall be guilty of a misdemeanor. Moreover, if any father or mother willfully abandons the child, leaves Georgia, s/he shall be guilty of a felony punishable by imprisonment for not less than one or more than three years. Parentage of the child, by the father, shall be determined by blood test. Although a child is born out of wedlock, the father may be required by the court to pay the reasonable medical expenses paid by or incurred on behalf of the mother due to the birth of the child.
O.C.G.A. § 31-10-9 deals with registration of births. According to the section, if a mother is married either at the time of conception or at the time of birth, the name of her husband shall be entered on the birth certificate as the father of the child. If paternity has been determined otherwise by a court having jurisdiction, the name of the father as determined by the court shall be entered. If the mother is not married to the father at either the time of conception or at the time of birth, the name of the putative father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as father.
In any case in which paternity of the child is determined by a court of competent jurisdiction, the name of the father and the surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court. If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate.
A contract which is against the policy of the law can not be enforced. Contracts deemed contrary to public policy include, but are not limited to, contracts of maintenance. The contracts will also include surrogacy contracts for gestational surrogacy, artificial insemination surrogacy, and egg (ova) donation because those have not been specifically upheld or prohibited in reported cases of the Georgia appellate courts.