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A Very Happy Unbirthday! Going Down the Rabbit Hole of Georgia’s Heartbeat Bill

In anticipation of a challenge to Roe v. Wade, the case which in 1973 set the precedent that abortion could not be made entirely inaccessible as a private medical matter, many states including Georgia created new legislation. There were two primary categories to this movement, “Trigger” laws which would not be able to go into effect at all until Roe v. Wade was overturned, and “Heartbeat” bills which aimed to preemptively limit the availability of abortions prior to new precedent. The Georgia “Heartbeat” bill, changing O.C.G.A. § 16-12-141, was designed to limit the ability to get an abortion by the development of a fetal heartbeat. Specifically, this references language in the following subsections:

(a.)(2.) “Detectable human heartbeat” means embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac.

(b.) No abortion is authorized or shall be performed if an unborn child has been determined in accordance with Code Section 31-9B-2 to have a detectable human heartbeat except when:

  1. A physician determines, in reasonable medical judgment, that a medical emergency exists;
  2. The probable gestational age of the unborn child is 20 weeks or less and the pregnancy is the result of rape or incest in which an official police report has been filed alleging the offense of rape or incest. As used in this paragraph, the term “probable gestational age of the unborn child” has the meaning provided by Code Section 31-9B-1; or
  3. A physician determines, in reasonable medical judgment, that the pregnancy is medically futile.

For example, yes you could successfully argue that a pregnant woman should be able to drive in the HOV lane. The change of language to refer to a fetus with a detectable heartbeat as an “unborn child” means much further reaching consequences for the law as a whole.

In family law alone, we look to the presence of a child for determinations on child support, custody, issues of paternity, and more. Let’s look at child support, for example. O.C.G.A. § 19-7-2 states there is an affirmative duty of parents to provide support for a child until they turn 18 or are otherwise excluded, even if they are born out of wedlock (§ 19-7-24). That support is intended for the maintenance and protection of that child, so it isn’t much of a logical leap to suggest that child support be required from the time a fetus is considered an unborn child, at approximately 6 weeks gestation.[1] That would mean that a supposed father could be on the hook for up to 8 additional months of child support. While child support doesn’t have to be paid if there is no genetic relationship, the risks of prenatal genetic testing mean it is seldom done. Could it be requested or even mandated to determine child support in utero? I can certainly foresee legal arguments being made on both sides.

This language can also have a massive impact on custody cases. In many counties, including Cobb, standing orders are automatically put in place upon the initiation of a case involving the custody of a minor child. Those standing orders include language which prevents a parent from taking the child in question outside of the jurisdiction of that Court during the life of the case. This could effectively bar a pregnant mother from leaving the state for nearly the entirety of her pregnancy, which would prevent her from moving and having prolonged visits with family. This presents significant complications for women who just want to get home, assuming they are in another state or country, before the birth of the child.

The Uniform Child Custody Jurisdiction and Enforcement Act (which has been adopted by 49 states excluding Massachusetts, and in D.C., Guam, the U.S. Virgin Islands, and Puerto Rico) considers jurisdiction over a child custody matter to be the location where the child has lived for the past 6 months. Case law dictates that an infant less than 6 months may be an exception. If an unborn child may be included, then a case may be filed as early as 7.5 months gestation, nearly 2 months before birth, if not even earlier. This would effectively bar the pregnant mother from leaving Georgia until the case could be dismissed or resolved. How do we manage the custody of a fetus? If a child’s body is still within its mother, does that allow for the court to grant visitation to interact with a pregnant belly? Can a mother be prevented from new relationships if it would effectively “expose” the child to a stranger?

Some of these questions are far reaching, and pretty improbable. There are far more scenarios possible than I have discussed here. The ability to legitimate them is something the Courts will have to contend with until official decisions or legislation is made to answer them. As attorneys, we are faced with these issues immediately, and we have to consider these arguments before anyone in our legislative body will have to. What we do in our cases will establish the framework for the next change to the law.

Written by Kaitie Ruhl-Pirone 7/22/22

[1] Charlotte Lozier Institute, “The Science Behind Embryonic Heartbeats – A Fact Sheet” Charlotte Lozier Institute (2021), https://lozierinstitute.org/the-science-behind-embryonic-heartbeats-a-fact-sheet/

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