Assisted Reproductive Technology: The Legal Issues

Probate & Property Magazine: Volume 28 No. 02

By

Kristine S. Knaplund is a professor of law at the Pepperdine University School of Law in Malibu, California, and the chair of the Elder Law, Disability Planning and Bioethics Group.

The rapidly expanding use of assisted reproductive technology poses new challenges for estate planners: who will be treated as the decedent’s child?

The rapidly expanding use of assisted reproductive technology (ART) poses new challenges for estate planners: who will be treated as the decedent’s child (or grandchild, nephew, niece, and so on)? Issues of standing, inheritance in intestacy, the meaning of “child” in a will or trust, and many others are all affected by these societal changes. This article outlines some of the legal issues you may encounter in your practice when dealing with ART.

Your client is a beneficiary of a trust fund established decades ago by her grandparents for the benefit of their “descendants.” The client and her husband hired a gestational carrier to be impregnated with a donated embryo and produce a child for the couple. The client asks you: will her child be a beneficiary, even though the child is not genetically related to her grandparents?

A second client asks you to prepare his estate plan. He informs you that he has cryopreserved his sperm so that his wife can use it after his death to have children. How can he best provide for his future children in his will or trust? How long should the estate remain open waiting for such children to be born?

You represent a local hospital. The chair of the Ethics Committee calls you to report that a newly married man was in a serious accident and, despite the best efforts of the Emergency Room team, died this morning. The man’s distraught widow has asked the surgeon to extract the man’s sperm for her later use. To be viable, the sperm must be obtained within the next few hours. What is your advice for the hospital on whether to proceed?

You may have encountered these issues already; if not, you are likely to be faced with them in the future. Assisted reproduction is now far more successful and more widely used than it was 10 years ago. What follows is a brief primer on assisted reproduction and the issues that may arise in your practice.

What Is Assisted Reproductive Technology (ART)?

Assisted reproductive technology involves the handling of gametes (sperm or ova) outside the human body in order to achieve a pregnancy. The three most common forms of ART are assisted insemination, in vitro fertilization, and gestational carriers.

Assisted insemination transfers sperm to a woman’s uterus or cervix using a device such as a syringe. No medical professional is necessary for this procedure, which is often used by lesbian couples with a male friend. In many states, a statute provides that if the sperm is given to a licensed physician for use in a woman other than the man’s wife, then the sperm donor is not the father of the resulting child. Problems may arise if the sperm is given directly to the woman. In a California case, Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Ct. App. 1986), a man who provided his semen directly to a female friend for assisted insemination was declared the child’s legal father because the procedure in the California statute, to provide the semen to a licensed physician, was not followed. A more recent case in New Jersey, E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Super. Ct. Ch. Div. 2011), came to the same conclusion under that state’s statute.

In vitro fertilization (IVF) requires extracting sperm and ova from a man and a woman and combining them in the laboratory to create a preembryo, which is then implanted in a woman’s uterus. Unlike assisted insemination, IVF always requires medical professionals. Issues as to parentage of the resulting child may arise if the couple uses donated gametes (sperm or ova).

The third method of assisted reproduction, the use of gestational carriers or surrogates, arises when a person who wants a child is unable to be pregnant, and so a woman is hired to carry the child and then relinquish it on birth. The term “surrogate” typically is used when the woman carrying the child is also the genetic mother of the child. In the high-profile case, In re Baby M, 537 A.2d 1227 (N.J. 1988), the court held that the surrogate (the genetic mother and birth mother) was the legal mother of a child conceived using ART. Since Baby M, most people use a gestational carrier instead, in the hope that the agreement to relinquish the child will be enforced. With a gestational carrier, the ovum comes from either the intended mother or a donor; it is combined in the lab with the sperm of either the intended father or a donor and then implanted in the gestational carrier.

State laws vary widely on the enforceability of gestational carrier or surrogacy agreements. The Uniform Parentage Act (UPA) § 801(a) requires approval of the contract by a court. The parties to the contract must go through a process similar to adoption: UPA § 803 (b)(2) and (3) contemplate a home study of the intended parents, a showing that the intended parents “meet the standards of suitability applicable to adoptive parents,” and a showing that all parties entered into the agreement voluntarily and understand its terms. Only heterosexual couples can seek judicial approval of the contract under UPA § 801(b), which requires, inter alia, that “[t]he man and woman who are the intended parents must both be parties to the gestational agreement.” If a same-sex couple or individual contracted with a gestational carrier in a jurisdiction that has adopted the UPA, the court would not validate the contract, and the gestational carrier would be the child’s mother under UPA § 809. Texas and Utah have adopted modified versions of Article 8 of the Uniform Parentage Act, requiring judicial approval of the contract. Tex. Fam. Code Ann. § 160.755; Utah Code Ann. § 78B-15-803. Utah also requires one of the intended parents to be a genetic parent for the agreement to be enforceable against the gestational carrier. Utah Code Ann. § 78B-15-801.

Similar to the procedures in the UPA, New Hampshire and Virginia require judicial approval of the agreement before ART begins. N.H. Rev. Stat. Ann. § 168-B:16; Va. Code Ann. § 20-160(A). In contrast, Florida requires the commissioning couple to seek judicial approval within three days after the child’s birth. Fla. Stat. § 742.16.

The 2008 amendment to the Uniform Probate Code § 2-121 does not require judicial approval of the contract, but instead allows a parent-child relationship to be established either by court order or by the intended parent functioning as a parent within two years of the child’s birth. Two states, Colorado and North Dakota, have adopted this section, which establishes a parent-child relationship with the intended parents even in cases in which the gestational carrier agreement is unenforceable. Colo. Rev. Stat. § 15-11-121; N.D. Cent. Code § 30.1-04-20.

Several other states have statutes regulating the enforceability of gestational carrier agreements. Illinois, for example, requires proof of the medical need for a gestational carrier to enforce the agreement. 750 Ill. Comp. Stat. 47/20, 47/25. Nevada allows only married heterosexual couples to be declared the legal parents of a child born to a gestational carrier. Nev. Rev. Stat. Ann. § 126.045. In North Dakota, N.D. Cent. Code § 14-18-05 declares that surrogate contracts are void, while gestational carrier contracts are enforceable.

Most states do not have legislation determining the enforceability of gestational carrier or surrogacy agreements, and thus the intended parents usually adopt the child if the birth mother agrees. For a summary of state laws on enforceability, see Darra L. Hofman, “Mama’s Baby, Daddy’s Maybe”: A State-by-State Survey of Surrogacy Laws and Their Disparate Gender Impact, 35 Wm. Mitchell L. Rev. 449 (2009).

Three Issues Involving ART

Many complications may arise when ART is used, but this article will focus on three issues: who is a “descendant” when donated gametes (sperm or ova) are used, postmortem retrieval and use of gametes, and delay of probate proceedings to allow postmortem conception.

Issue 1: Who Is a Descendant When Donated Gametes Are Used?

A trust created in 1959 for the benefit of the settlor’s “issue” or “descendants” and their spouses stated that “adoptions shall not be recognized.” In 2001, the settlor’s daughter and her husband entered into a gestational carrier agreement in California, using a donated egg and the daughter’s husband’s sperm. After the gestational carrier gave birth to twins, a California court declared that the settlor’s daughter and her husband were the legal parents of the twins. The trustees asked a New York court for instructions: were the twins, who are genetically unrelated to the settlor and his daughter, included in the trust?

In In re Doe, 793 N.Y.S.2d 878 (Sur. Ct. 2005), a New York court held that the twins were included in the trust. The court noted that the twins were not adopted under California law; also, the trust included beneficiaries who were not blood relatives (surviving spouses of descendants); and despite the fact that New York declares such gestational or surrogacy agreements void and unenforceable, New York public policy does not prohibit recognizing the California decision of parentage.

Issue 2: Should Estate Planners Anticipate That Sperm or Ova May Be Retrieved and Used After a Person Has Died?

Retrieval of sperm from a man who is dead or in a persistent vegetative state is possible and has been performed on a number of occasions. Sperm can be retrieved up to 48 hours after brain death, although ideally it is retrieved within the first three hours. The sperm can be retrieved through electroejaculation with a rectal probe, through the surgical removal of the testes, or by vasal aspiration, in which an incision is made in the vas deferens to insert a catheter and obtain the sperm. Requests to retrieve sperm postmortem are frequent enough for several hospitals to adopt protocols on when such requests should be granted.

Retrieval of ova from a woman who is dead or in a persistent vegetative state is more difficult but medically possible. In 2010, the husband of a woman in a persistent vegetative state asked that his wife be kept on life support so that she could be administered ovulation-stimulating hormones and her ova be harvested. The hospital convened an ethics committee, which declined the husband’s request because of lack of evidence of the wife’s consent to the procedure, and evidence that retrieval might hasten her death. David M. Greer et al., Case 21-210: A Request for Retrieval of Oocytes from a 36-Year-Old Woman with Anoxic Brain Injury, 363 New Eng. J. Med. 276 (2010). The only published report of postmortem ova retrieval has occurred in Israel. After a 17-year-old woman died in a car accident, her parents obtained a court order to remove and freeze her eggs. Mikaela Conley, Israel Court Allows Family to Harvest Dead Daughter’s Eggs, ABC News, Aug. 11, 2011, available at http://abcnews.go.com/Health/Israeli-family-permission-freeze-dead-daughters-eggs/story?id=14272156.

Uniform Probate Code § 2-120 may encourage postmortem retrieval of sperm because the statute presumes the decedent consented to be a parent of a child if (1) at the time of decedent’s death she or he is married with no divorce proceedings pending and (2) decedent’s surviving spouse conceives a child within 36 months of the decedent’s death, or gives birth within 45 months of the decedent’s death. The section does not require that the gametes be deposited before the decedent’s death. The presumption that the decedent consented to be a parent of the resulting child can be rebutted by clear and convincing evidence.

Suppose that the family of a recently deceased person asks the hospital to retrieve the deceased’s sperm or ova. The hospital refuses to proceed without a court order and asks you to represent them in court. Do you need to establish that the decedent has consented to this retrieval? If so, is retrieval of gametes similar to organ donation? In the case of In re Daniel Thomas Christy, No. EQVO68545 (Sept. 14, 2007), a court in Iowa found implied consent for postmortem sperm retrieval from the fact that the decedent had consented to be an organ donor under Iowa’s version of the Uniform Anatomical Gift Act.

Alternatively, suppose that the deceased’s sperm or ova are cryopreserved at a clinic. Are these assets of the decedent’s estate? If so, who inherits them? If not, who pays the bill at the facility? In a California case, Hecht v. Superior Court, 59 Cal. Rptr. 2d 222 (Ct. App. 1996), the decedent had deposited 15 vials of his sperm at a sperm bank, with instructions to release them to his girlfriend, Deborah Hecht; he also bequeathed the sperm to her in his will. The California Court of Appeal reversed the trial court’s order to destroy the sperm and declared that the probate court had jurisdiction over it. In a later ruling, after Hecht and the decedent’s two children had entered into a settlement agreement giving Hecht 20% of the decedent’s property, the court of appeal held that the agreement did not apply to the sperm because of the decedent’s “fundamental right” to procreate with the woman of his choice.

Issue 3: How Long Should We Wait for a Postmortem Conception Child to Be Born?

If the decedent has cryopreserved sperm or ova, must probate proceedings wait to see if the gametes are used to create a postmortem conception child? Several states have adopted Uniform Parentage Act § 707, which requires the decedent to consent in writing to be a parent of a postmortem conception child. In these states, probate can proceed if the decedent has not so consented in writing. The 2000 version of UPA § 707, adopted by Alabama, Colorado, Texas, and Utah, requires written consent to be a parent if a spouse dies before placement of eggs, sperm, or embryos. Ala. Code § 26-17-707; Colo. Rev. Stat. § 19-4-106(8); Tex. Fam. Code Ann. § 160.707; Utah Code Ann. § 78B-15-707. Another three states (Delaware, Washington, and Wyoming) have adopted the 2002 version of UPA § 707, which applies to any individual (rather than a spouse) who consents in writing to postmortem conception. Del. Code Ann. tit. 13, § 8-707; Wyo. Stat. Ann. § 14-2-907; Wash. Rev. Code Ann. § 26.26.730. Two states have adopted a mix of the 2000/2002 UPA language so that it is unclear whether it applies only to married couples or to individuals: New Mexico provides that “[i]f a person who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm or embryos, the deceased person is not a parent of the resulting child unless the deceased spouse consented in a signed record that if assisted reproduction were to occur after death, the deceased person would be a parent of the child,” N.M. Stat. § 40-11A-707, while North Dakota substitutes the word “individual” for “person,” but retains the same reference to the deceased spouse, N.D. Cent. Code § 14-20-65.

What sort of writing might satisfy the statute? In Burns v. Astrue, 289 P.3d 551 (Utah 2012), the Utah Supreme Court concluded that a Semen Storage Agreement did not constitute the requisite written consent to be a parent of a postmortem child, finding that the purpose of the agreement “has nothing whatsoever to do with one’s status as a parent.” Florida accepts only one form of written consent: the postmortem conception child inherits only if provided for in the decedent’s will.

Even if the decedent has consented in writing, how long should the estate stay open for such a child to be conceived and born? A few states impose timetables within which the gametes must be used to create a child.

Two states, Colorado and North Dakota, have adopted Uniform Probate Code § 2-120, which allows the decedent’s consent to be a parent of a postmortem conception child to be proven either by a signed writing (as in the UPA) or by other clear and convincing evidence. The child is treated as in gestation at the time the parent died if in utero not later than 36 months after the decedent’s death, or born not later than 45 months after the decedent’s death. Colo. Rev. Stat. § 15-11-120; N.D. Cent. Code § 30.1-04-19. Both Connecticut and Maryland require decedent’s consent in writing; in addition, Connecticut requires the child to be in utero not later than one year after decedent spouse’s death, but Maryland requires the child to be born within two years of decedent’s death and does not require the decedent to be married at death. Act of July 12, 2013, 2013 Conn. Acts 301 (Reg. Sess.); Act of May 16, 2013, 2013 Md. Laws 644. A few states, by statute, limit inheritance by a postmortem conception child in other ways. Virginia does not recognize any child born more than 10 months after the death of a parent. Va. Code Ann. § 20-164. Georgia requires a child to be conceived before the decedent’s death, born within 10 months of decedent’s death, and survive 120 hours or more after birth. Ga. Code Ann. § 53-2-1. New York does not allow a postmortem conception child to claim a share of a testate decedent’s estate through its omitted child statute. N.Y. Est. Powers & Trusts L. § 5-3.2(b).

In some states with no statutes on postmortem conception children, courts have been asked to decide whether such children are eligible to inherit in intestacy from the decedent. Courts in three states (New Jersey, Massachusetts, and Arizona) have held that state law allows a decedent to be named the parent of a postmortem conception child if certain conditions (such as evidence of the decedent’s consent) are met; courts in another three states (New Hampshire, Arkansas, and Michigan) have held that a postmortem conception child is not eligible to inherit from a decedent.

Suppose your state has no statute or case law on whether a child conceived after a decedent’s death may inherit. Should the estate remain open to see if such a child is conceived? In In re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000), the New Jersey Superior Court was asked to decide if two children born a year after Kolacy’s death were his intestate heirs. The court found clear and convincing evidence that the decedent was the children’s biological father and held that such children should routinely be allowed to inherit “unless doing so would unfairly intrude on the rights of other persons or would cause serious problems in the orderly administration of estates.” The administrative concerns were minimized in Kolacy because there were no probate assets in the estate; the issue was whether the children qualified as his heirs under state law so that they could claim Social Security benefits as the children of a deceased wage earner.

In a Massachusetts case also involving eligibility for Social Security Survivor’s benefits, a federal court asked the Supreme Judicial Court of Massachusetts to decide if, under state law, a decedent’s postmortem children were his heirs in intestacy, in Woodward v. Commissioner of Social Security, 760 N.E. 2d 257 (Mass. 2002). The court balanced “three powerful State interests: the best interests of children, the State’s interest in the orderly administration of estates, and the reproductive rights of the genetic parent.” The court held that the plaintiff must establish that the decedent consented to postmortem use of his or her gametes and agreed to support the resulting child. The court also required that notice be given to all interested parties so competing interests could be considered and the state’s interest in prompt administration of the estate could be carried out.

In a New York case, In re Martin B., 841 N.Y.S.2d 207 (Sur. Ct. 2007), seven trust agreements executed in 1969 allowed the trustees to sprinkle principal to the grantor’s issue. The grantor’s son, James, died shortly before the grantor in 2001. James had left cryopreserved sperm, which his wife used after his death to give birth to a son in 2004, and again in 2006. The court held that the two children conceived and born years after their father’s death were the grantor’s issue and therefore beneficiaries of the trust.

Three other states without statutes on postmortem conception children have ruled that they do not qualify to inherit in intestacy because they are not considered in being when the decedent died. In 2007, the New Hampshire Supreme Court in Eng Khabbaz v. Commissioner of Social Security, 930 A.2d 1180 (N.H. 2007), cited a statutory scheme to allow those who “survive” a decedent to inherit. A child conceived long after the decedent’s death did not survive him as required by the statute. Similarly, the Arkansas Supreme Court construed a statute defining posthumous as “conceived before his or her death” to mean that only such heirs could claim a share in intestacy, in Finley v. Astrue, 270 S.W.3d 849 (Ark. 2008). Most recently, the Michigan Supreme Court, in Mattison v. Commissioner of Social Security, 825 N.W.2d 566 (Mich. 2012), determined that only “children in gestation” at the decedent’s death were entitled to inherit from him in intestacy. Several other states have statutes similar to those at issue in Arkansas and Michigan that explicitly state that only such heirs can inherit. For example, Indiana’s statute, Ind. Code Ann. § 29-1-2-6, states descendants “begotten before his death but born thereafter” shall inherit, and concludes: “With this exception, the descent and distribution of intestate estates shall be determined by the relationships existing at the time of the death of the intestate.” An Ohio statute, Ohio Rev. Code Ann. § 2105.14, is similar to Indiana’s.

Conclusion

Science is rapidly outpacing the law in the arena of assisted reproduction. A woman can give birth to a child who is not genetically related to her. Sperm and ova can be retrieved after a person’s death. These new developments present challenges for probate courts that must interpret documents written decades ago, to decide who is the decedent’s “child” or “grandchild.” Now that sperm and ova can be retrieved after a person’s death, you may need to ask a court to decide—quickly—whether to order a hospital to comply with a family’s request. If sperm or ova have been cryopreserved before the decedent’s death, other issues arise, such as whether these are probate assets. This is an exciting time for estate planners!

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