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September 27, 2023

Legal Implications of Assisted Reproductive Technologies

Intestacy, Survivorship Claims Post-Mortem, and Frozen Embryo Custody Disputes

By Rachel S. Wyatt and Lauren N. Fairchild

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Assisted reproductive technologies (ART) can give individuals otherwise incapable of conceiving a chance of having biological children of their own. An increasing number of individuals opt to undergo the most prevalent and successful forms of ART: In vitro fertilization (IVF), or fertilization outside of the body, and intrauterine insemination (IUI).

In an IUI procedure, specially prepared sperm are placed directly into the uterus to increase the chances of conceiving. During an IVF procedure, a medical professional retrieves mature oocytes from the ovaries, fertilizes them with sperm in a lab, and transfers the resulting embryos into a human uterus. If the process is successful, a pregnancy will occur. The first birth from IVF and subsequent embryo transfer took place in England in 1978 when Louise Brown was born. Since then, the IVF process has served as an alternative, effective, and often necessary means of conception for some people. In 2018, the International Committee for Monitoring ART (ICMART) estimated that about eight million IVF births occurred worldwide after 1978.

A typical IVF procedure entails creating more embryos than the individual seeking treatment will use for reproduction. As a result, one or few embryos are implanted in the uterus, while the remaining embryos might be discarded, donated to another individual, or cryopreserved for later use by the progenitors. IUI and IVF allow for posthumously conceived children, i.e., children born to women who become pregnant via the preserved semen of a deceased man, or, in the case of IVF, children born of frozen eggs of a deceased woman. Both ART methodologies present novel legal issues. The status of frozen embryos and posthumously conceived children under the law continues to develop as more and more individuals utilize ART to have children. This article explores the changing legal landscape with respect to frozen embryos and posthumously born children. It will examine modern inheritance law when defining a child, and regulations on posthumously born children as well as embryo custody disputes. It will also discuss applicable intestacy approaches using the Uniform Probate Code (UPC) and the Uniform Parentage Act. 

Inheritance Law

A child can be defined as an unborn or recently born person; a young person, especially between infancy and youth; a person not yet of age; or a son or daughter of human parents. A child most commonly means a person under the age of majority. Most states rely on statutory language and interpretation of the UPC to guide them in the context of children and inheritance.

In 2012, the U.S. Supreme Court decided Astrue v. Capato ex rel. B.N.C., a case regarding twins conceived via IVF 18 months after the death of their father. The Court relied on section 416(h)(2)(A) of the Social Security Act, holding that the twins could receive Social Security benefits “only if they qualified for inheritance from the decedent under state intestacy law.” Because the deceased resided in Florida at the time of his death, Florida intestacy law applied and the children did not qualify for inheritance, making them ineligible for Social Security benefits.

At present, a parent who applies for survivorship rights on behalf of his or her child submits the application to the Social Security Administration (SSA). The Social Security commissioner approves applications based on whether the child could inherit personal property from the deceased as his or her natural child under state inheritance laws. If the child cannot inherit, the application is denied, and the surviving parent may appeal the decision with the SSA. If they are denied again, the surviving parent may commence a lawsuit. Courts use a de novo standard of review to determine whether there is substantial evidence supporting the commissioner’s decision to deny the application.

If the elements of a posthumous inheritance statute are not entirely fulfilled, courts have found in favor of the SSA. While the question of whether a child conceived by way of preserved genetics has legal rights to a deceased parent’s benefits or estate may appear straightforward, in reality, it is not always black and white.

In Beeler v. Astrue, the court was asked to determine if a child posthumously conceived, a year after the father’s death, was legally entitled to benefits under the Social Security Act. As the Supreme Court did a year later in Astrue v. Capato ex rel. B.N.C., the Eighth Circuit resolved the question of a child’s eligibility to obtain insurance benefits by incorporating reference to state intestacy law. The plaintiff, on behalf of the minor child, filed an application for child’s insurance benefits, which was denied under the theory that the child was not considered a child of the wage earner consistent with the Social Security Act. The SSA interpreted the Act in such a way that a natural born child of a decedent was not entitled to benefits unless they had inheritance rights under state law or could satisfy additional statutory requirements. The SSA argued that its regulations and interpretation of the statutory provisions constituted an authoritative construction of the Act that was entitled to Chevron Deference and interpreted the Act to allow a child to obtain status as a natural child within the definition of 42 U.S.C.S § 416 (e), which delineates the manner in which an individual is deemed to be the “child” of another in § 416 (h)(2)(A), (h)(2)(B), or (h)(3). The Court ultimately held that the commissioner’s denial of benefits was supported by a reasonable construction of the governing regulations and statutes.

Legal Ramifications for Posthumously Conceived Children

Generally speaking, children born to unmarried parents have a higher threshold to cross when it comes to claiming inheritance rights. Children born during marriage are presumed to be children of marriage, and, thus, are potentially eligible to receive Social Security survivors’ benefits under Social Security Act. In Woodward v. Commissioner of Social Security, the U.S. District Court for the District of Massachusetts certified the following question to the Massachusetts Supreme Court: If a married man and woman arrange for sperm to be withdrawn from the husband for the purpose of artificially impregnating the wife, and the woman is impregnated with that sperm after the man, her husband, has died, will children resulting from such pregnancy enjoy the inheritance rights of natural children under Massachusetts’ law of intestate succession? The Massachusetts Supreme Court held that there were limited circumstances in which posthumously conceived children may enjoy the inheritance rights of issue under intestacy law. The requirements are as follows: (1) A surviving parent or legal representative must show a genetic relationship, (2) the decedent parent affirmatively consented to the posthumous reproduction and to support any resulting child, and (3) the filing complies with the statute of limitations. Although the court acknowledged the deceased as the genetic father of the wife’s children, it held that the evidence was not sufficient to establish the husband as the children’s legal father for purposes of the devolution and distribution of his intestate property.

In a different case, the Michigan Supreme Court held that twins born to a mother who was artificially inseminated with the father’s sperm 12 days after the father died were neither born nor conceived during marriage; since the twins were “non-marital children,” they were not entitled to inherit from the father under Michigan intestacy laws and were not entitled to benefits under the federal Old-age, Survivors, and Disability Insurance Statutes, 42 U.S.C.S. § 416 (defines “child”) or 42 U.S.C.S. § 402 (sets the parameters by which they can inherit).

The National Conference of Commissioners on Uniform State Laws approved the first version of the Uniform Parentage Act in 1973. The purpose of the Act was to address the status of non-marital children and allow them to be treated equally regardless of the parental marital status. This effort encouraged states to remove statutory language that could be harmful to children such as “illegitimate” and “child with no presumed father.” The Act attempts to address parentage of children conceived after a parent’s death by permitting parental status to be determined via written consent to assisted reproduction after death. Currently, thirteen states have adopted some form of the Uniform Parentage Act and follow its requirements for consent for posthumous reproduction and parentage.

Once a determination can be made regarding legal parentage status from a deceased parent, the next step is determining rights and inheritance. Under the Uniform Parentage Act and the Restatement (Third) of Property, the right to inherit is presumed once parentage is satisfied. Thus, states that follow the Uniform Parentage Act allow a posthumous child to inherit as a child of a deceased person, unless statutory language specifies otherwise. Some states only allow the right to inherit pursuant to situations explicitly recognized by case law, whereas others allow the right to inherit so long as the posthumously conceived child is explicitly provided for in the will of the deceased parent. Of note, simply because a state follows all or parts of the Act does not necessarily mean the state will presume a child’s right to inherit as a posthumously conceived child.

Survivorship Claim for Wrongful Death

A wrongful death action allows a spouse, child, or parent of the deceased to bring an action to recover for damages caused by a wrongful act or negligence. In successful claims, damages will be distributed to those who are eligible to recover under a state’s intestacy law in such an amount that is proportional to their pecuniary loss. The exception to this generality is that when a decedent has no surviving spouse, children, or grandchildren, the decedent’s parents may recover.

A similar issue may arise with children conceived posthumously via artificial conception. States have revised their intestacy statutes to address questions of posthumously born and conceived children in a few ways, by either permitting posthumously conceived children to take as heirs, by denying intestacy rights, or by admitting extensive evidence on a case-by-case basis. The UPC adopts the latter approach, which assumes the decedent requested that children artificially conceived born to the surviving spouse take as heirs.  For children born to someone other than the surviving spouse, the opposite presumption applies.

However, this is not an unlimited window of time; if a posthumously conceived child is born too long after the decedent’s death, they lose their right to inheritance. A child is treated as “in gestation” for the purposes of defining a child under UPC § 2-104 (a)(2), if they are in utero not later than 36 months after the deceased parent’s death or born not later than 45 months after that individual’s death. Thus, in theory, if a posthumously conceived child falls within the requisite qualifications under state intestacy law or the UPC, they may bring a wrongful death claim for survivorship so long as it falls within other legal parameters (i.e., statute of limitations, etc.). However, the chances of this are likely low, as there can only be one claim for wrongful death brought on behalf of a decedent, and priority is typically given to the surviving spouse. If the guardian of a posthumously conceived child attempted to bring an action on behalf of the child in addition to a pending wrongful death suit, the court would likely dismiss it or consolidate the two cases.

Embryo Custody Disputes

An embryo custody dispute arises when individuals agree to undergo IVF, store the remaining embryos, and then later disagree about what should happen to those frozen embryos. Given the fairly recent development of IVF, these cases often involve issues of first impression for courts. The sperm and egg contributors’ claims to remaining embryos involve individual constitutional rights issues as well as contract interpretation issues. Generally, courts take three different approaches when weighing the rights of the progenitors in custody dispute cases. Courts will either look to a prior agreement between the parties, balance the interests of the parties, require parties to mutually consent to embryo disposition, or take a combination of these approaches.

Prior Agreements

For the most part, prior written agreements determining the disposition of frozen embryos are valid and enforceable. The New York Court of Appeals considered the enforceability of these agreements in Kass v. Kass and discussed the possible benefits of prior agreements. Prior written agreements can minimize litigation costs and limit the possibility of misunderstandings. Even more vitally, agreements can protect the procreative liberty of the parties; if parties execute the agreement themselves, they keep the authority to make a personal, intimate choice about reproduction. When the progenitors do not come to a prior agreement, the fate of their reproductive autonomy lies with courts when a disagreement occurs.

In a fairly recent case, the Arizona Supreme Court looked to the Kass decision and gave full effect to a prior written agreement. In Terrell v. Torres, a woman received a cancer diagnosis and decided that an IVF procedure would be the best option for her to have biological children at a later time, given that the cancer treatment could cause infertility. Her then-boyfriend agreed to be a sperm donor, even though he initially objected. Before the IVF procedure, both parties signed the Fertility Treatment Center’s agreement and consent forms. Per the agreement, any embryos created during the procedure belonged to both parties; each needed to consent before using or otherwise disposing of the embryos. There was a specific section of the agreement form that described what would happen to the remaining embryos if the couple divorced. In the event of a separation, the agreement permitted the parties to discard the embryos, donate them, or, if there was mutual, written consent, use the embryos to achieve a pregnancy. Terrell and Torres selected an option that stated they would present a settlement agreement or court decree to the clinic to direct use for pregnancy or donation. The parties underwent IVF procedures and froze the embryos while Torres received cancer treatment. A few years later, Torres and Terrell divorced and disagreed about the disposition of the frozen embryos; Torres desired to use the embryos to bear a child, while Terrell requested donation. The family court evaluated the agreement but ultimately decided to balance the parties’ interests instead of enforcing the agreement. The trial court ordered embryo donation pursuant to Terrell’s wishes, but then the court of appeals reversed and awarded the embryos to Torres. When the Arizona Supreme Court reviewed the decision, it applied basic contract principles to decipher the meaning of the Fertility Treatment Clinic’s agreement provision providing for the disposition of the embryos in the event of a separation. The Supreme Court noted the provision, when read in light of the entire agreement, indicated the parties’ intent to donate the frozen embryos. Specifically, the provision did not negate the express requirement for the parties’ written, contemporaneous consent before using the embryos to achieve pregnancy. In this case, the Court emphasized the family court’s error in evaluating the parties’ procreational interests and autonomy instead of giving effect to the written agreement.

Even in the absence of a written directive, courts may look to an agreement and prioritize the sperm and egg donors’ intent. In Szafranski v. Dunston, Dunston received a serious medical diagnosis; her illness had an adverse impact on her ability to have children. Her then-partner, Szafranski, agreed to provide sperm for an IVF procedure. At the fertility clinic, they each signed a consent agreement. A disclaimer within the agreement stated a court decree or settlement would determine the parties’ rights to the embryos. Before the fertility clinic created the embryos, the couple met with an attorney and discussed possible forms of agreement, including a co-parenting agreement and a sperm donor agreement. A co-parenting agreement provided that the couple would undergo at least one IVF cycle and that Dunston would maintain sole control over the embryos in the event of a separation. Neither Dunston nor Szafranski signed the agreement. A year after the parties began the IVF procedures, Szafranski filed a complaint to enjoin Dunston from implanting the embryos. The lower court awarded Dunston with full custody of the embryos, and the appellate court reviewed the circuit court’s ruling de novo. After considering the three primary approaches other courts tend to take with respect to embryo disputes, the Court decided the contractual approach was the most appropriate. The Court reversed the circuit court’s ruling and noted, “honoring such agreements will promote serious discussions between the parties prior to participating in IVF regarding their desires, intentions, and concerns.”

Balancing Interests

In the absence of any prior agreement between the progenitors, some courts decide embryo custody disputes by balancing the parties’ interests. The different yet equal reproductive rights of each party are often at odds in these cases. Because of this, the balancing interests methodology may require courts to make difficult determinations. In Davis v. Davis, Junior Davis sought to discard frozen embryos while his wife, Mary Davis, sought to donate the embryos to another couple. Notably, Mary Davis had another means of becoming a biological parent and wanted to donate the embryos rather than use them for herself. The Court said Junior Davis’s burden of becoming a biological parent against his will substantially outweighed Mary Davis’s burden of knowing her biological embryos would not become children. Furthermore, it provided a general guide for resolving embryo disputes: If the person seeking to utilize frozen embryos can reasonably become a biological parent by other means, then the party wanting to avoid procreation should prevail. The Davis case differs from other embryo dispute cases in that neither of the parties wanted to use the embryos to have their own children. In cases involving both parties’ interests in becoming parents, courts may face more difficult determinations, especially when one party relies on the embryos for a last chance of becoming a biological parent.

Another fairly recent case articulated distinct factors for courts to use when balancing interests: (1) the intended use of the embryos by the spouse who wants to preserve them; (2) the demonstrated physical ability (or inability) of the spouse seeking to implant the embryos to have biological children through other means; (3) the parties’ original reasons for undertaking IVF (for example, whether the couple sought to preserve a spouse’s future ability to bear children in the face of fertility-implicating medical treatment); (4) the hardship for the spouse seeking to avoid becoming a genetic parent, including emotional, financial, or logistical considerations; (5) a spouse’s demonstrated bad faith or attempt to use the embryos as unfair leverage in the divorce proceedings; and (6) other considerations relevant to the parties’ specific situation.

The Rooks factors touch on the parties’ individualized concerns in a highly specified way; an evaluation necessarily requires court involvement in the most intimate aspects of the dispute. The dissenting opinion in Rooks highlighted concerns about a high degree of court involvement, stating that the Rooks test permits the state to inflict constitutional harm. Moreover, the dissenter questioned the balancing approach altogether, stating “[t]he decision to have children is one of the most consequential choices people make in life. The considerations that go into it are numerous and personal; it is not a decision that most would leave to their dearest friends, let alone the state.”

Contemporaneous Mutual Consent

An alternative methodology courts use to resolve embryo disputes is the contemporaneous mutual consent approach. In Witten, a couple divorced following several unsuccessful embryo transfers. There was a prior, written agreement pertaining to the disposition of the embryos that both parties signed. The embryo storage agreement contained a joint-approval provision that required both parties’ consent before the transfer, release, or other disposition of the embryos. Per a second provision in the agreement, the fertility treatment center relinquished their responsibility to store the embryos if there was (1) a written authorization to release the embryos or destroy them, (2) a death of either client, (3) a client failure to pay the storage fee, or (4) if 10 years passed since the date of the agreement. Tamera Witten wished to implant the embryos in herself or a surrogate mother, and opposed any destruction of the embryos. She stated she would give Arthur Witten parental rights in the event of a successful pregnancy. Arthur Witten did not want the embryos to be destroyed and he was willing to donate the embryos, but he maintained that he did not want his former wife to use them. The trial court gave effect to the agreement and enjoined either of the Wittens from releasing the embryos without the consent of both parties. Tamera Witten filed an appeal on the basis that the storage agreement did not account for marriage dissolution and that the court should have applied an Iowa test for deciding the best interests of a child in a custody case. The Court rejected her argument that the best interests tests should govern their dispute and noted that decision-making authority was at issue rather than the custody of children. In deciding what approach to apply to the issue, the Court considered the balancing interests approach and the contractual approach. Public policy concerns about courts stepping in as decision makers in an extremely emotional situation led the Court away from the balancing interests approach. Prior contractual agreements, on the other hand, are valid so long as neither party changed their minds about the disposition of the stored embryos. The Court ultimately concluded that “A better principle to apply, we think, is the requirement of contemporaneous mutual consent. Under that model, no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors.” Moreover, the Court held that the party who opposes the destruction of embryos bears the additional storage costs.

The mutual contemporaneous consent approach is beneficial to courts in that it precludes potentially intrusive involvement in the procreational rights of the donors. Compared to the balancing interests approach, the mutual contemporaneous consent approach benefits the parties, as their valid, procreational rights aren’t weighed against each other. Moreover, the contemporaneous consent method addresses some of the concerns raised about the ethicality of prior agreements. If either party changes their mind following the execution of an instrument, they are not bound by the agreement if the court hearing the dispute requires mutual consent.

The Road Ahead

Scientific innovation can change countless lives for the better. IVF and IUI procedures gave and continue to give individuals the chance to have biological children of their own. However, scientific innovation brings the possibility of legal uncertainty, leaving courts to grapple with some of the most intimate and life-changing decisions a person might make.

The U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization overturned the nearly 50-year precedent set by Roe v. Wade, which had recognized a constitutional right to abortion. While it is too early to tell the extent of the impact this case will have within the context of ART, there is a potential for it to cause disruption. Following this ruling, some states implemented qualifiers in the context of embryonic “personhood,” codifying the concept that life begins at fertilization. For instance, Missouri adopted a law that provides in part, “the life of each human being begins at conception.” In theory, if a couple had fertilized embryos and the surviving spouse wanted to unfreeze and transfer the embryos, the time qualifier under the UPC for posthumously conceived children may have passed. If personhood begins at fertilization, it will well surpass the UPC’s 36- and 45-month requirements. Therefore, it will be vital for individuals utilizing ART to understand how their home state defines an “embryo,” “unborn child,” “personhood,” and “fertilization.”

The Dobbs ruling could have broad, far-reaching consequences for individuals receiving IVF procedures. Dr. Stephanie K. Boys and Dr. Evan M. Harris identify possible outcomes for IVF in the changing legal landscape. Some consequences include lower IVF success rates, higher costs, and more medically invasive procedures. If state legislation reduces the number of oocytes that medical professionals can retrieve and fertilize for the IVF procedure, this could mean individuals are more likely to have a failed procedure, and consequently, have to pay for additional expensive and medically invasive IVF cycles to achieve a pregnancy. Moreover, if a law required all embryos to be transferred to the uterus, there would be a higher likelihood of pregnancies with multiples, which can pose health risks to the mother and the children; the American College of Obstetricians and Gynecologists notes that these risks include a greater chance of preterm birth, gestational diabetes, preeclampsia, and fetal growth problems. If state legislation were to mandate implantation and prohibit individuals from storing remaining embryos, then couples might have to spend more money on egg-retrieval if implantation does not result in a pregnancy. Therefore, persons who rely on IVF to conceive may be disproportionately impacted by court decisions like Dobbs. Almost certainly, test-tube-created embryos will continue to pose novel considerations and issues for courts in the years to come. 

    Rachel Wyatt

    Wiggins Sewell & Ogletree, Oklahoma City, OK

    Rachel Wyatt is an associate attorney with Wiggins, Sewell, & Ogletree specializing in medical malpractice defense. She is a 2023 graduate of Oklahoma City University School of Law where she was the president of the Health Law Association, a participant in the University of Maryland Healthcare and Compliance Competition and USPTO Patent Drafting competition, and the recipient of multiple pro bono service awards. She can be reached at [email protected].

    Lauren N. Fairchild

    Wiggins Sewell & Ogletree, Oklahoma City, OK

    Lauren N. Fairchild is an associate attorney at Wiggins Sewell and Ogletree after serving as a legal clerk. She received her Juris Doctor from the University of Oklahoma in 2022, graduating on the Dean’s Honor Roll with an honorary membership to the Organization for the Advancement of Women in Law. She can be reached at [email protected].

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