In her article, Professor Kristine S. Knaplund covers the evolving topic of new reproductive techniques—assisted insemination, in vitro fertilization, donation of sperm and ova and gestational carriers—and whether those born pursuant to those techniques are “children” or “descendants” for purposes of state statutes. This is an area that planners would like to avoid and certainly not one our clients greet with enthusiasm. Nevertheless, the reality, as Prof. Knaplund points out, is that the increased prevalence of these techniques requires thoughtfulness and definitional answers in our estate-planning considerations. Though she uses the article to address suggested changes to state laws, Prof. Knaplund provides a reference point to practitioners for their estate-planning documents.
Specifically, she suggests that planners need to consider whether individuals born from assisted reproductive techniques (ART) should be deemed children for inheritance and other state law purposes.
First, in the least controversial case, a heterosexual couple uses its own gametes (reproductive materials). For example, the birth mother receives donor eggs or pre-embryos with the father’s sperm. In this case, most married couples would like to be treated as parents, regardless of the timing of implantation (before or after marriage). The author suggests that an intent test should apply to cover all couples creating a child through ART. If the sperm donor intends to be the father, he should be.
Second, the author highlights the viability of the standard in the Uniform Parentage Act (UPA) to determine whether the donor of sperm should be the father (Section 703 of the UPA):
A man who provides sperm for, or consents to, assisted reproduction by a woman as provided in Section 704 with the intent to be the parent of her child, is the parent of the resulting child.
By implication, if there’s no intent by the sperm donor to be the father, he shouldn’t be.
Third, Prof. Knaplund discusses a more difficult area: post-mortem conception. A pre-embryo is implanted in either a birth mother or gestational carrier after the death of an intended parent. Is this a child of the decedent? Prof. Knaplund discusses two possible solutions: First, the consent by a deceased individual (while living, of course) “to the use of his or her gametes to conceive a child after the individual has died.” Second, proof that the decedent intended to function as a parent by clear and convincing evidence.
The author’s discussion of the ethical issues on post-mortem use of genetic material to conceive a child also points to the difficulty of drafting. For example, a standard provision in the planning documents could provide that each testator prohibits any harvesting of sperm or other reproductive material post-mortem.
The concern, however, is what would happen if the surviving spouse wanted to harvest genetic material? Would this boilerplate provision prohibit that harvesting? Would the planner face ethical violations if the surviving spouse indicated that the topic hadn’t been discussed?
Fourth, as to gestational surrogates, the author suggests a specific carve-out in which the birth mother doesn’t intend to be the legal mother of that child. This discussion also includes the important segment of whether the contract with a surrogate is enforceable.
Prof. Knaplund discusses the standard by which gestational carrier agreements should be enforced. She notes that states vary as to their treatment of gestational surrogate contracts. For example, some states have laws declaring that only gestational surrogacy contracts entered into by married couples are enforceable (Florida, for example).
Questions arise, then, as to who’s the parent for those unenforceable contracts. Is the gestational carrier deemed to be the child’s legal mother because she gave birth to the child?
Throughout the article, Prof. Knaplund raises substantial important definitional issues regarding ART and inheritance. The practitioner’s goal is to seek out a definition that works in most cases. For example, I suggest that one provision could read:
15.2 Child and Descendant.
(a) Child. A “child” of a person means only
(1) a genetic child of the birth mother;
(2) a genetic child of the person if such person was married to the child’s birth mother when the child was conceived naturally or at any time thereafter;
(3) any other genetic child of the person, a nongenetic child to whom the person gave birth or a nongenetic child if the person was married to the child’s birth mother at any time during the child’s gestation, in each case, if (A) such person openly treated such child (including a child in gestation) as such person’s child or (B) such person advises the trustee by signed instrument (which shall be considered irrevocable when delivered) that such child shall be considered a child of such person; or
(4) a child lawfully adopted by the person prior to that child’s attaining age 21.
Notwithstanding the preceding provisions of this paragraph, “genetic child” shall not include any child born after such person’s death unless such child was in gestation at the time of such person’s death.
(b) Descendant. A child of a person is a “descendant” of that person and of all ancestors of that person. A person’s descendants include all such descendants whenever born. Except when distribution or allocation is directed to descendants per stirpes, the word “descendants” includes descendants of every degree whether or not a parent or more remote ancestor of a descendant is also living.
(c) Child in gestation. A child in gestation on the date any allocation or distribution is to be made shall be deemed to be living on that date if the child is subsequently born alive and lives for at least 90 days. A child is in gestation only if in the womb.
(d) Termination of parentage. Notwithstanding subparagraph 15.2(a), if a court terminates the parent-child legal relationship while the parent is alive, that child thereafter will not be treated as a child of that parent.
(e) Married to. For purposes of this paragraph, a person is “married to” another person while they are both living and are spouses, as defined in this instrument.
(f) Other rules. An individual who is not at birth a child or descendant of a person but who upon a subsequent event becomes a child or descendant of such person shall be treated as a child or descendant of such person only for purposes of any allocation or distribution occurring after such subsequent event. The Trustee shall not be liable for the Trustee’s good faith determination of who is a child or descendant of a person (including but not limited to a determination of whether a person openly treats a child as such individual’s child).