A Peach County woman is asking the state supreme court to give her, not her ex-husband, custody of three embryos.

The state supreme court says Wendy Wilson gave birth to twins through in vitro fertilization. She is appealing a Peach County court ruling awarding the remaining embryos to her husband, who could choose to destroy them or donate them to someone else.

The state Supreme Court is scheduled to hear the case Monday.

According to a court summary, Wilson met Rommel Delgado in 2010 through a Christian dating service. Because she could not conceive naturally, the court says, the couple worked with an Oregon company that fertilized five embryos using his sperm.

Using two of the embryos, Wilson give birth to twins in May 2013.

The couple signed an agreement saying that the three remaining embryos were joint property and if the couple divorced, a court would decide their fate.

Wilson filed for divorce in 2014, and one issue was who would get custody of the three remaining embryos.

According to the court summary, She claimed that she always intended to give birth to them, that they are her children's siblings and that she views them as her "children."

Delgado, however, "said he wanted no more children, even if she released him from any financial or other responsibility."

A Peach County court ruled that the embryos belonged to Delgado because, unlike Wilson, he contributed "biological material" to them.

Wilson's lawyers cite Wilson's beliefs against destroying the embryos. They said she hoped "to carry and birth the children born of these embryos, not be ordered to destroy the budding lives whose existence she orchestrated."

The state Supreme Court is scheduled to hear the case Monday in Atlanta.

Here is the court summary of the case:


A woman who gave birth to twins through in vitro fertilization, using donor eggs and her now ex-husband’s sperm, is appealing a Peach County court ruling that awards to her former husband three remaining embryos which he may choose to destroy or donate to someone else.

FACTS: Wendy Wilson and Rommel Delgado met in 2010 through a Christian dating service. At the time, Delgado, a Mexican national and legal resident of Georgia, was staying with his family in Mexico. The parties subsequently married in September 2010. Wilson owned a bakery in Warner Robins, and when Delgado returned to the United States, he went to work at her bakery. Because she could not conceive naturally, the parties worked with Oregon Reproductive Medicine to have eggs from a donor fertilized in vitro with Delgado’s sperm and then implanted into her womb. The two signed a consent form stating that the embryos were joint property and that upon dissolution of marriage a court would control the fate of the embryos. The clinic was able to create five viable embryos, two of which were transferred into Wilson’s womb. In May 2013, she gave birth to twins, a boy and a girl. The couple subsequently separated and in 2014, Wilson filed for divorce.

One of the issues during the divorce was who would have custody of the three remaining embryos. She claimed she had always intended to give birth to them, that they are her children’s siblings, and that she views them as her “children.” He, however, said he wanted no more children, even if she released him from any financial or other responsibility. The trial court ruled in Delgado’s favor, both because he was the “progenitor,” or the only party who contributed biological material to the embryos, and because there was no agreement or contract between the parties as to the disposition of the embryos were they to divorce. The court relied on the reasoning of a 1992 decision by the Tennessee Supreme Court, citing it as one of the most important cases in deciding what becomes of embryos upon disagreement by the parties. In that decision, Davis v. Davis, the Tennessee high court noted that the disposition of such embryos should be decided by the preferences of the progenitors first, and then by any prior agreement between the parties. The Davis decision cited the U.S. Supreme Court in stating that an individual has a constitutional right to procreate or not procreate. Similarly, the trial court relied on a 2002 Washington Supreme Court decision, Litowitz v. Litowitz, in which the facts were similar to these – the man contributed the sperm but the woman did not contribute the eggs. The Washington high court held that since she “did not produce the eggs used to create the pre-embryos and is not a progenitor,” any “right that she may have must be based solely upon contract.” Because in this case the trial court ruled there was no contract, it ruled that Delgado had the legal right to the embryos. Wilson now appeals to the Georgia Supreme Court.

ARGUMENTS: The trial court erred in finding that statutes related to the adoption of embryos don’t apply to this case because the embryos here are “ex utero,” or living in storage and outside a uterus. Georgia Code § 19-8-40 (3) clearly defines the “embryo transfer” referred to in the statute as “the medical procedure of physically placing an embryo into the uterus of a female.” That language “implies that the embryo to be transferred is ex utero and will be transferred to the uterus, making it inherently applicable to the embryos in this case,” Wilson’s attorney argues. Georgia statutes that speak to the “option of adoption” for embryos, also provide Delgado an avenue to forfeit his parental rights and responsibilities. The trial court also erred by failing to define the legal status of preserved embryos because that is a key first step toward determining how they will be distributed. Some states designate frozen embryos as neither property nor persons but instead as a hybrid of property and person that “occupy an interim category that entitles them to special respect because of their potential for human life,” the attorney argues. Absent evidence of an agreement between the parties in the event of divorce, courts have used a number of factors to balance the parties’ interests, including the personal history of the parties, their religious views, the emotional burden on the outcome to the parties, the legal burden to the parties, and the use to which each party intends to put the embryos. Her interests “were based on the entirely reasonable expectation, deeply grounded in her religious beliefs, that she would be able to use the embryos and thereby carry and birth the children born of these embryos, not be ordered to destroy the budding lives whose existence she orchestrated,” her attorney argues. Surely her interests outweigh Delgado’s protests, “which are centered on his personal dislike of [Wilson] and concern regarding legal responsibility that could be surrendered.” Here, rather than “using a broad spectrum of factors and analyzing the parties’ personal histories, emotional investment in this particular reproductive opportunity, relative burdens, fertility issues, and motivations, the trial court used only the antiquated factor of genetic relation,” her attorney argues. The trial court found that Wilson had no right in the embryos, referring to the assertion in Davis that no one bears the consequences of procreation as much as the “gamete” contributor, or the one who contributes sperm or eggs. But this assertion no longer rings true given technology, the nature of modern families, “and considering that statutes now allow gamete-contributors to relinquish their responsibilities to an embryo.” “The trial court trivialized Ms. Wilson’s claim to the embryos simply and dismissively because she was not a gamete contributor,” the attorney argues. “Gamete contribution should not garner him an insurmountable interest in any equitable division of the embryos.” Among other arguments, Wilson’s attorney argues that the Davis and Litowitz are “outdated,” given the rapid advance of science, medicine, and modern reproductive technologies, as well as changing family structures. “Accordingly, the emerging common law should move beyond the antiquated views of genetic exceptionalism and recognize that genetic connection should not be the controlling factor in determining parenthood for cases involving the use of assistive reproductive technology.” Wilson concludes by asking this Court to build upon the Georgia Code, “which designates embryos as candidates for adoption,” and make a decision that “will allow assignment of custody based on a ‘best interests’ standard and afford these embryos every opportunity at full and fruitful lives alongside their genetic siblings, in the care of a loving, supportive mother.”

Delgado’s attorney argues that contrary to Wilson’s argument, the trial court did not rule that the Georgia statute did not apply to the preserved embryos based on whether they were ex utero or in utero. Rather, the trial court ruled the statute did not apply because no authority has been cited which would allow the court to force Delgado to give away his rights to the pre-embryos. The judge did not make a ruling as to whether the statute applied “as there was no need to,” the attorney argues. The trial court rejected using the statute “by noting the constitutional right to not procreate.” The trial court awarded the embryos to Delgado, based on the reasoning of Davis v. Davis. “The criteria set out in Davis and Litowitz, which the trial court has used to reach a decision in this case, relies on two specific and particular facts of this case.” First, Wilson “is not a progenitor, gamete provider of these eggs and has no biological connection nor made any biological contribution to these fertilized eggs,” whereas Delgado is a progenitor and gamete provider. Second, there “is no contract between the parties directing the disposition of these pre-embryos upon the dissolution of the party’s marriage.” Finally, the Davis and Litowitz decisions are not outdated, Delgado’s attorney argues. “Though this issue has not had to be addressed in Georgia before,” other states have addressed it. The Georgia Supreme Court should follow the reasoning in both these decisions and rule that Wilson, “having contributed no biological material and thus not being a progenitor for these pre-embryos has no right to them whatsoever as there is no contract addressing the disposition of these pre-embryos upon the dissolution of the marriage.”

Attorney for Appellant (Wilson): Connie Williford

Attorney for Appellee (Delgado): Charles Liipfert