Test-Tube Parents: Cyropreservation and the Fertile Corpse - A Retrospective

In the early 1980s, the Australian State of Victoria commissioned a study that culminated in reports by the Waller Commission and, as a result of that study, the Victoria legislature enacted the Infertility (Medical Procedures) Act of 1984. A major concern was the status of any children born as a consequence of transfer of these embryos into a woman. Who would be a parent of the child, and would the child be a beneficiary of the Rios estate? In 1985, the Los Angeles Superior Court ruled that the executors of the estate had no legal say over the fate of the embryos, and the Probate Commissioner ruled that “the children born from the embryos would not be heirs to the estate.”

Historically, the law has, as a starting point, viewed legal parentage simply as having derived from biological parentage. In the case of posthumous childbirth, the law has long recognized that a man who dies between the time of coitus resulting in conception and the time of childbirth is the legal parent. An exception arises when infidelity is at issue, in which case the marital presumption of paternity operates in favor of the woman’s husband, as opposed to the male progenitor.

Definitions

With the advent of assisted reproduction and other related technology, the legal implications of childbirth after the death of one or both gamete providers have become more nuanced. The ability to obtain gametes from very recently deceased individuals and to fertilize eggs in vitro, along with cryopreservation capabilities, have challenged our concepts of what legal parentage is and whose consent is required to initiate posthumous reproduction. Advances in complex reproductive technologies have made the need for clear definitions in this area of the law even more urgent. Even today, though, lawyers and judges do not always make clear whether they are talking about biological (genetic or gestational) or legal parentage (or both), and the failure to make that distinction often leads to misunderstandings and unnecessary and confusing debate.

What is “posthumous conception”? Black’s Law Dictionary defines conception as “the beginning of pregnancy,” perhaps the simplest but not the most usable definition of conception in the age of cryopreservation, where several years may elapse between embryo creation  and  implantation.  Presumably  the  “beginning of pregnancy” refers to either creation of an embryo (fertilization of an egg) or implantation of an embryo. A logical definition of posthumous conception, then, would be creation or implantation of an embryo after the death of a progenitor, i.e., the provider of the sperm and/or egg that created the embryo. More accurately, the term “implantation” should, in situations of assisted reproductive technology (ART), be “transfer of an embryo or gamete that leads to implantation of an embryo,” since transfer (or in the case of natural insemination, coitus) is an event definable in time, as opposed to implantation, the exact time of which is determined by natural processes beyond our control. For the purposes of this article, then, use of the term “conception” is avoided. The terms “fertilization” after the death of      a gamete provider (of necessity, always in vitro or by artificial insemination) and “embryo transfer” after the death of a gamete provider are used, as the times of these occurrences (as related to the status of the progenitors) are capable of being determined with some certainty.

“Posthumous reproduction,” then, would be the process beginning with posthumous transfer of embryos or gametes and ending with a live birth.

Other definitions exist, of course, and may be found in model and existing legislation. I have found the definitions offered here to be the simplest and most usable, although far from perfect. The important point is that whichever definitions are used, they should be clearly spelled out when writing an opinion or argument.

Legal Status of Fametes and Embryos

What is an “embryo” in the law? In the case of Davis v. Davis, 842 S.W.2d 588 (1992), the Tennessee Supreme Court characterized cryopreserved embryos as not human beings and not quite property, but an “interim category that entitles them to special respect because of their potential for human life.” Id. at 597. Generally, and even before Davis, courts have been unwilling to permit cryopreserved embryos or gametes to be included in an estate. While an embryo has never been treated by   a court as a human being, it is a potential human being or beings (an embryo in  the cryopreserved state has the potential for twinning). Because of this, many are disturbed by the destruction of an otherwise viable embryo. Nonetheless, courts have almost universally (with exceedingly rare exceptions) declined to permit gestation of an embryo unless both progenitors are in agreement. In A.Z. v. B.Z., 725 N.E.2d 1051, 1059 (Mass. 2000), an agreement (even if valid) to award frozen embryos where the other party opposed gestation, was held to be void as against Massachusetts public policy, thus implicitly rejecting the idea of an embryo as property.

Lower appellate court cases in Washington in 2009 and Pennsylvania in 2013 upheld the authority of a court to treat cryopreserved embryos as property, at least in the context of a divorce. It is not clear, except possibly under unique facts, that such a ruling would apply to an estate.

A gift of gametes or embryos by a person later deceased might imply consent  on the part of the giver to produce a child. The fact that cryopreserved material is ordinarily in the possession of a cryopreservation facility may complicate such an assumption. Moreover, in general, courts have been reluctant to permit posthumous sperm retrieval or embryo transfer without a previous clear and explicit declaration, usually in writing, by the deceased.

A possible exception in the case of post-mortem sperm retrieval (PMSR) would be to consider it as an anatomical gift and subject to state law on anatomical gifts. An intriguing question is whether parents of, or other decision-makers for, the deceased, who might ordinarily give consent for anatomical gifts, would be permitted to consent to PMSR without a previous declaration by the decedent. What about the wishes of an unmarried partner, as opposed to those of the deceased’s parents?  As has occurred in the United Kingdom, statutes might also limit the ability of a surviving progenitor or third party to transfer embryos for gestation.

Rights and Responsibilities of Physicians

A not-uncommon scenario is one that begins with a man in an emergency room with a severe traumatic injury who is either deceased or expected to die. A family member—a spouse, sibling, or parent, say—requests or even demands extraction of sperm. The situation becomes more dramatic when immediate use of the extracted sperm for IVF insemination is desired, since the viability of sperm outside the body is limited to at most a few hours. A decision becomes a matter of urgency, especially where the person desiring extraction threatens legal action if the sperm is not extracted. A logical solution, if in doubt, might be cryopreservation (with the clear understanding that it will not be used without a court order), leaving the decision about use of the sperm to a court. The situation isn’t quite that simple, since the wishes, often unexpressed, of the decedent are key. Then there is the matter of consent, as discussed above, since extraction is arguably a medical procedure that would require it. Moreover, in some ways, incompetency resembles death for purposes of progenitor “consent” and determination of legal parentage.

In 2013, the Ethics Committee of the American Society of Reproductive Medicine declared that the physician may ethically not comply with the request unless there has been a clear previous expression of consent to undergo the procedure and intent to be at least the biological father of the resulting child. It appears that the physician could ethically comply with such a request if made by a surviving spouse or “life partner.”

Policy Considerations, and Legal Rights and Responsibilities

Parentage may be thought of as a combination of social, biological, and legal status. As we have seen, there are, and ought to be, constraints on the establishment of legal parentage long after the death of a biological would-be parent, even though there is a genetic tie that, in the pre-cryopreservation world, might determine legal parentage. As a matter of policy, children ought to have the benefit of a social parent, i.e., one who would be recognized in the community as a parent, and who would be capable of rearing and nurturing them, as well as a legal parent, i.e., one who would be legally responsible for a child’s support.

Storage facilities may or may not possess some degree of dispositional control of cryopreserved gametes or embryos in their possession, but generally, dispositional control would remain with a surviving spouse, or life partner in the case of embryos, or one who has received them as a gift during the decedent’s life, subject to the law in the jurisdiction. The decision to use gametes for fertilization or to transfer an embryo after the death of a progenitor (the gamete provider) may impact not only the individuals who would be the child’s parents (and questions about legal parentage should be resolved before embryo transfer), but heirs or legatees of the deceased’s estate. In 2007, a New York court in Matter of Martin B, 841 N.Y.S.2d 207, permitted a widow’s children, created by means of her deceased husband’s frozen sperm, to be considered “issue” and “descendants” and thus to be beneficiaries of trusts created by the deceased husband’s father.

A number of cases have revolved around eligibility for Social Security survivor benefits. Generally, under the Social Security statute, that question depends upon whether, under state law, the resulting child would be eligible to inherit from the deceased progenitor. Those decisions have been in line with a later case decided by the U.S Supreme Court, Astrue v. Capato, 132 S. Ct. 2021 (2012). In reality, at least before Capato, the Social Security Administration had been inclined to award benefits even when a strict application of the law might not permit it. This may have been true because often the surviving spouse is struggling financially and also because of a recognition that much of the relevant statutory law was developed before the techniques of assisted reproduction existed.

Many of the problems that arise in connection with posthumous reproduction might be avoided if the intentions and wishes of individuals preserving their gametes or embryos were clearly spelled out, preferably in writing, for all contingencies that might arise after their death. These expressions of intention would ideally specify matters relating to both biological and legal parentage, per the Uniform Parentage Act and Uniform Probate Code.

UPA (2002) section 707 reflects one of the earliest legislative approaches to posthumous reproduction in the United States: section 4 of the 1988 Uniform Status of Children of Assisted Conception Act. The section 707 comment reads:

Absent consent in a record, the death of an individual whose genetic material is subsequently used either in conceiving an embryo or in implanting an already existing embryo into a womb ends the potential legal parenthood of the deceased. This section is designed primarily to avoid the problems of intestate succession which could arise if the posthumous use of a person’s genetic material leads to the deceased being determined to be a parent. Of course, an individual who wants to explicitly provide for such children in his or her will may do so.

With the advances in the technology of cryopreservation since the Rios case,  the possibility has arisen that several years may pass between the time of embryo or gamete freezing and live birth. Thus the issue of whether genetic or biological parentage confers legal parentage needs to be addressed. State laws vary. For instance, in Capato, referred to above, the deceased husband was domiciled in Florida at the time of his death. Had he been in a state that had adopted the Uniform Probate Code, the outcome would have been different. The Uniform Probate Code (2010) provides as follows:

§ 2-120 (k) [When Posthumously Conceived Child Treated as in Gestation.] If, under this section, an individual is a parent [apparently biological] of a child of assisted reproduction who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of Section 2-104(a)(2) [“Individual in Gestation”] if the child is: (1) in utero not later than 36 months after the individual’s death; or (2) born not later than 45 months after the individual’s death.

Conclusion

The legal analysis of posthumous reproduction requires a consideration of not only the genetic pedigree of the child but also of how a resulting child will grow up,  that is, who will fill the roles of social and legal parent (which will ideally reside in the same individual), as well as how legal parentage of the child may affect other beneficiaries of an estate. This means parsing the biological, legal, and social issues. Legal argument and decisions should make clear which of these attributes are being discussed.

Physicians and storage facilities should establish policies that spell out as clearly as possible the intentions, rights, and responsibilities of individuals, vis à vis the child, who provide gametes and embryos for future use. The range of contingencies that might occur should be considered. There also should be guidance as to how dispositional control is to be determined. fa