Georgia recognizes an “unborn child” as a natural person under state law, but that definition applies to a human being carried in the womb. Cryopreserved embryos created and stored outside the body through IVF do not fall within that statutory definition.
For intended parents, that distinction matters when creating, testing, freezing and storing embryos through IVF. Georgia law also addresses assisted reproduction in other ways, so decisions involving embryo control, future use and parentage can still carry legal consequences.
At Foster + Bloom, we help intended parents make informed decisions about embryo control and future use so their IVF planning supports the family they hope to build.
Does Georgia Law Consider an Embryo a Person?
Georgia’s LIFE Act, enacted in 2019, includes an “unborn child” within the definition of a natural person.
The scope of that language is important for IVF. Georgia law defines an “unborn child” as a human being “carried in the womb”, which distinguishes pregnancy from an embryo created through IVF and stored outside the body.
Georgia also has laws that specifically address embryos outside the body, including the legal transfer of rights to donated embryos. These laws regulate certain decisions involving embryos without treating a cryopreserved embryo as an “unborn child” under the LIFE Act.
How Georgia Embryo Laws Affect IVF
IVF is legal in Georgia, and since July 1, 2025, state law expressly provides that nothing in the Georgia Code may be interpreted to prohibit or prevent an individual from obtaining IVF. The law specifically recognizes IVF as involving embryos created in an embryology laboratory and either transferred to a uterus or preserved for future use.
For intended parents, Georgia’s current legal framework allows the core steps involved in IVF, including:
- Creating Embryos: Eggs may be retrieved and fertilized in an embryology laboratory to create one or more embryos.
- Testing and Selecting Embryos: Embryos may undergo laboratory evaluation and testing before decisions are made about transfer or storage.
- Freezing and Storage: Georgia’s IVF statute specifically recognizes preserving embryos for future use.
- Embryo Transfer: An embryo may be transferred to a uterus as part of IVF treatment, including when future family-building plans involve a gestational surrogate.
Georgia’s IVF protection confirms access to the treatment, but it does not resolve every legal question involving embryos after they are created. Decisions about who controls stored embryos, whether an agreement governs their future disposition and what happens if intended parents later disagree are separate legal issues.
Embryo Disposition Laws in Georgia
What ultimately happens to unused embryos in Georgia depends on the intended parents’ agreements, clinic policies and the type of disposition involved. Common disposition options may include:
- Continued Storage: Georgia’s IVF law expressly recognizes that embryos created through IVF may be preserved for future use.
- Future Reproductive Use: Stored embryos may be preserved for a later IVF cycle, including potential future use as part of a gestational surrogacy plan.
- Embryo Donation: Georgia has a specific process for transferring embryos to another intended parent. The person or people who hold legal rights to the embryos may relinquish those rights and responsibilities through a written contract before the embryo is transferred.
- Research or Destruction: Depending on clinic policies and applicable agreements, intended parents may be able to donate embryos to research or have them thawed and discarded. Georgia does not provide the same specific statutory process for these options as it does for embryo donation to another intended parent.
The option you choose can determine whether an embryo remains available for your own future use or whether your legal rights to it are transferred. Clear disposition instructions are especially important when more than one person holds rights to the embryos or your plans may change over time.
Are IVF Consent and Embryo Disposition Agreements Enforceable in Georgia?
Yes. Georgia courts may enforce written IVF and embryo disposition agreements as contracts when their terms clearly address what should happen to stored embryos.
In Smith v. Smith, the Georgia Court of Appeals enforced an agreement the spouses signed before IVF rather than allowing the trial court to decide the embryo’s disposition through equitable property division or a balancing of interests.
The decision makes the language of an IVF agreement especially important. Whether an agreement controls can depend on its validity, what circumstances it covers and whether its terms apply to the dispute that later arises.
Clinic Consent Forms vs. Individualized Agreements
Clinic consent forms may contain legally significant instructions about future embryo disposition. An individualized embryo disposition agreement can address those decisions more deliberately, including what should happen after separation, divorce, death or a change in family-building plans.
What Happens to Frozen Embryos in a Divorce in Georgia?
Georgia’s leading appellate decision makes clear that courts should enforce an applicable agreement rather than simply divide the embryo as marital property.
In Smith v. Smith, the Georgia Court of Appeals reversed a trial court that had awarded the couple’s frozen embryo to the wife. The couple had previously agreed that the embryo would be donated if they could no longer agree about its disposition, and the appellate court held that their agreement controlled.
The practical lesson is significant: instructions signed before or during IVF may become decisive if a relationship later ends. Georgia appellate courts have not yet established a definitive rule for resolving a divorce dispute when no enforceable agreement addresses what should happen to the embryos.
What Happens to Frozen Embryos in a Divorce in Georgia?
Georgia appellate authority supports enforcing an applicable IVF agreement rather than treating an embryo like an ordinary marital asset and deciding its disposition through equitable division.
That makes the instructions signed before or during IVF potentially decisive if a relationship later ends. Georgia appellate courts have not established a definitive rule for resolving an embryo dispute when no enforceable agreement addresses the circumstances.
Key Georgia Embryo Divorce Case: Smith v. Smith (2023)
Smith v. Smith is Georgia’s leading appellate decision addressing frozen embryo disposition in divorce.
- Case Background: The spouses underwent IVF and created one viable embryo. Their clinic documents addressed both divorce and what should happen if they later became unable to agree about disposition.
- The Dispute: During their divorce, the wife sought use of the embryo, while the husband sought enforcement of the provision calling for donation to another couple if the parties could not agree.
- The Ruling: The trial court awarded the embryo to the wife after balancing the parties’ interests. The Georgia Court of Appeals reversed, concluding that the parties had an enforceable agreement governing disposition and that the trial court should have enforced it.
- The Practical Rule: When an enforceable IVF agreement addresses the embryo-disposition dispute, Smith supports enforcing that agreement rather than substituting equitable property division or a judicial balancing of the parties’ competing interests.
For Georgia intended parents, Smith shows that IVF paperwork can have consequences long after treatment ends. Understanding and documenting your disposition choices before embryos are created can help make those intentions clearer if circumstances later change.
What Happens to Embryos if an Intended Parent Dies in Georgia?
If an intended parent dies while embryos remain in storage, what happens next can depend on the couple’s IVF agreements, clinic documents and any instructions they made about using the embryos after death.
A surviving spouse or partner may want to use the embryos to have a child, but that can raise separate questions about parentage and inheritance. Georgia law recognizes children conceived through IVF, but its inheritance rules can become more complicated when a child is conceived or born after a parent dies.
If posthumous use is something you would want your partner to have the option to pursue, it is important to document those wishes in advance and coordinate your embryo planning with your estate plan.
What if You and Your Partner Disagree About Using Your Embryos?
Plans for stored embryos can change even when divorce is not involved. One person may want another transfer while the other wants to continue storage, donate the embryos or end reproductive use altogether.
In Georgia, a change of mind does not necessarily erase instructions that were previously agreed upon. As Smith v. Smith demonstrates, an enforceable IVF agreement may control how embryos are handled when the people who created them later disagree.
When an existing agreement does not resolve the issue, Georgia appellate law does not provide a clear rule for every embryo dispute. Before authorizing a transfer, donation or destruction during a disagreement, the existing agreements and each person’s legal rights should be carefully reviewed.
Does Georgia Protect IVF and Fertility Treatment?
Yes. Georgia enacted an IVF protection in 2025 that took effect July 1, 2025. Current law provides that nothing in the Georgia Code may be interpreted to prohibit or prevent an individual from obtaining IVF.
The law specifically recognizes IVF as creating embryos in a laboratory for transfer to a uterus or preservation for future use. Georgia also requires IVF and similar assisted reproductive procedures performed on a woman to be provided by a licensed physician or surgeon.
These protections preserve access to IVF, but they do not resolve every legal issue involving the embryos you create. This makes it important to speak with an ART attorney who can help you understand how Georgia law and your agreements may affect embryo control, disposition and future use.
How Georgia Embryo Laws Can Affect a Future Surrogacy Plan
If you create embryos now with plans to use a gestational surrogate later, the legal decisions made during IVF can affect your future surrogacy plan. Georgia does not have a comprehensive statute governing gestational surrogacy, making clear documentation of embryo rights, consent and donor involvement especially important.
Before an embryo is transferred to a gestational carrier, intended parents should consider:
- Embryo Control: Your agreements should make clear who has authority to approve the embryo’s future reproductive use, particularly when more than one person holds rights to it.
- Donor Gametes: Georgia law provides that an egg or sperm donor generally does not have parental rights to a child conceived through assisted reproduction. If donor gametes are involved, the underlying documentation should be reviewed as part of the surrogacy plan.
- Donated Embryos: Georgia has a separate statutory process for transferring legal rights to donated embryos. Intended parents using a donated embryo should make sure those rights were properly transferred before moving forward with surrogacy.
- Consent to Transfer: Existing IVF and embryo agreements should be reviewed to confirm that the planned transfer to a gestational carrier is consistent with the authority and instructions already documented.
Addressing these issues when embryos are created can make it easier to coordinate the embryos, gestational carrier agreement and parentage strategy when you are ready to pursue surrogacy.
Decisions to Make Before Creating Embryos in Georgia
Before creating embryos, it is worth thinking beyond the immediate IVF cycle. The choices you make now can affect who may use your embryos and what happens to them if your plans or circumstances change. Before signing clinic documents, consider how you want to handle:
- Future Reproductive Use: Who may authorize embryo testing, thawing or transfer?
- Separation or Divorce: What should happen to the embryos if your relationship ends?
- Death or Incapacity: May a surviving partner use the embryos, and what instructions should apply if one or both intended parents can no longer make decisions?
- Remaining Embryos: Should unused embryos stay in storage, be donated for reproductive use or research, or be discarded when permitted?
- Future Surrogacy: May the embryos be transferred to a gestational carrier, and do any donor-related documents support that planned use?
Clinic consent and storage forms can document many of these choices, but they may not explain how those decisions could affect you years later. Individualized legal advice can help you understand the long-term consequences before you commit to instructions that may later control the use or disposition of your embryos.
How Foster + Bloom Helps Intended Parents Plan for the Future of Their Embryos
The agreements you sign during IVF can shape what happens to your embryos years from now. Foster + Bloom helps intended parents understand those choices before they become difficult to revisit.
Our ART attorneys can help clarify who has authority over your embryos, document your disposition wishes and plan for changes such as separation or death. If donor gametes or future surrogacy are part of your plans, we can also help coordinate those legal pieces from the start.
With decades of experience in assisted reproduction and family-building law, our goal is to give you a plan that works not only for the IVF cycle ahead, but for the different ways your family may grow.
Talk to a Fertility Law Attorney Before You Create Embryos
Before signing your clinic’s cryopreservation consent forms in Georgia, make sure your parental rights and long-term plans are fully protected. Connect with a dedicated attorney to discuss your IVF plans and understand how Georgia law applies to your embryos.
Why I Practice in Family Law: "I can make a meaningful difference in people’s lives during some of their most challenging and transformative moments. I am passionate about helping families navigate complex legal situations, whether it’s guiding them through adoption, surrogacy or fostering children. Family law gives me the opportunity to advocate for the best interests of children and families, ensuring their rights are protected and their futures are secure. By working in this field, I am able to provide compassionate support, clear guidance and a sense of stability for those who need it most."Meet Your Georgia Attorney
Sherriann Hicks,
Member