• Sex Post Facto: How Posthumous Reproduction is Changing Trust and Estate Law

    One of law’s great qualities is that it is always evolving, always responding to changes in society or advances in technology. One of the challenges – and rewards – of practicing law is that we too must respond and delve into new topics, educate ourselves, reconsider ourown positions, and deepen our understanding of society, technology and the law. And no practice area is immune from these changes, not even such traditional practices as trust and estate law.

    Three years ago, a client asked a simple question that intrigued and stumped me: “What would happen to my estate if I conceive a child after I die?” Having never considered this possibility, I responded with the standard, “I’ll have to do a little research and get back to you.” I soon realized, however, that this question raised numerous issues and required much more than “a little research.” In fact, in the majority of states, there appeared to be no clear answers to these issues. When I joined the St. Thomas School of Law faculty in fall 2010, I had the opportunity to explore these issues more deeply. Indeed, what interests should a posthumously conceived child – a child not just born, but conceived,after a parent’s death – have in that parent’s estate?

    Background

    The ancient Romans had a simple rule to determine an individual’s heirs: identify all family members living when the decedent dies and, if the decedent’s wife is pregnant, wait to see if the child is born alive.1 No later than nine months after the decedent’s death, all possible heirs could be determined. This approach worked well for thousands of years. Then came cryopreservation, the ability to freeze genetic material and use it at a later date.

    In 1949, scientists discovered that they could keep sperm viable by using glycerol in the freezing process. Four years later, scientists reported the first human pregnancy resultingfrom cryopreserved sperm. In time, the technology advanced beyond the cryopreservation of sperm. In 1984, the first child who developed from a cryopreserved embryo was born,and in 1986, the first child conceived from a cryopreserved egg was born. In 2004, a child was born who had been conceived from sperm that had been frozen for twenty-one years.

    Today, researchers estimate that each year more than 30,000 children are born who were conceived from frozen sperm and almost 29,000 in-vitro fertilization transfers use frozen embryos. The freezing and thawing of genetic material is not the science of tomorrow – the technology exists, is being used daily, and is becoming more common each year.

    Reasons for Posthumous Conception

    Although the reasons that couples turn to assisted reproduction to achieve a pregnancy are self-evident, it may be less clear why an individual would use his or her deceased partner’s genetic material to create a child. To help put this in context, consider two scenarios. First, a newly married couple learns that the husband has cancer, and the treatment may leave him sterile. To preserve the possibility that they may have children together, he has his sperm frozen. Sadly, though, he does not survive the cancer treatments.

    Second, a couple has a number of embryos frozen as part of the in-vitro fertilization process, and either the man or the woman dies unexpectedly. In each scenario, the survivor may not intend to remarry, but he or she still may desire to have a child. The survivor must decide whether to adopt, to use sperm or eggs from an anonymous donor, or to use his or her deceased partner’s preserved genetic material.

    There are many reasons why individuals in these situations may use the deceased partner’s genetic material. Some may do so as a tribute to the deceased partner. Some may do so for religious reasons.2 Others may do so out of a desire to know the child’s genetic origin. Further, if the surviving partner becomes sterile, the use of a frozen embryo may be the only way for that person to have his or her own genetic child. Also, it often will cost  significantly less to use the decedent’s genetic material than to procure gametes from anew donor.

    Finally, doing so may allow the child to inherit from certain individuals (including the decedent or other family members), to qualify as a beneficiary of certain trusts, or to receive Social Security or other survivor benefits. My research focuses on this last reason: under what circumstances a child may receive financial benefits as a child of the decedent.

    Legal Issues

    Posthumous conception creates many questions in trust and estate law. For instance, should a posthumously conceived child inherit from the deceased parent? Should it matter if the child is born more than one year after the parent’s death? Two years later? Ten years later? Should it matter whether the decedent consented to the posthumous use of his or her genetic material? Should it matter whether the decedent and survivor were married? What if the decedent had a will that provided generally for his children – should that include posthumously conceived children? What if the decedent’s parents had created a trust yearsearlier for their descendants – should posthumously conceived children be deemed their descendants? Should the answers change with respect to insurance benefits or retirement plan benefits payable to “issue”? Are posthumously conceived children eligible to receiveSocial Security survivorship benefits, worker’s compensation benefits, or wrongful death benefits? Should an executor, trustee, or custodian be liable for distributing assets before learning that a decedent left cryopreserved genetic material?

    The legal interests affected can be grouped into two categories: (1) probate-related issues and (2) class-gift issues. The first category includes pretermitted-heir status under a state probate code, inheritance rights under state intestacy statutes, and other interests dependent upon a person’s right to inherit under state intestacy statutes. For instance, eligibility for Social Security survivor benefits depends in part on one’s status as an heir under state law. Similarly, life insurance policies and retirement plan documents often deferto state intestacy statutes if the owner dies without a valid beneficiary designation. The class-gift issues concern the interpretation of wills, trust agreements, or beneficiary designations that include a general provision for a person’s issue, heirs, descendants, children, grandchildren, or the like.

    These issues are not just theoretical – a number of courts have struggled to answer some of these questions over the past few years, and state legislatures have just begun to address these issues. However, no consensus has emerged regarding whether such children should have any interests, or, if so, under what conditions.

    Existing Legal Responses

    The traditional approach described above has been a part of American common law and early probate statutes since at least the early 1800s. In 1946, the American Bar Associationpublished the Model Probate Code, the first model or uniform probate act. The Model Probate Code incorporated the traditional approach and provided that a child “begottenbefore his [the decedent’s] death but born thereafter” shall inherit from the decedent. The ABA’s 1969 Uniform Probate Code included a similar provision, though the act referred tochildren “conceived” before the parent’s death. These clauses are commonly known as “posthumous-heirs” or “afterbornheirs” provisions. Almost all of the fifty states have adopted the Model Probate Code, the Uniform Probate Code, or an afterborn-heirs provision that uses similar language.

    When applied literally, however, such clauses do not adequately address posthumously conceived children. For instance, consider the first scenario above. If the woman usedher husband’s sperm shortly after his death to fertilize one of her eggs, the clause would not apply because the child was not “begotten” or “conceived” during the husband’s lifetime. Thus, the child would not be his heir. On the other hand, consider the second scenario. If the wife used one of the frozen embryos years after her husband’s death, the statute would apply (since conception had occurred during the decedent’s lifetime). Thus, that child would be his heir.

    Certainly, the drafters did not intend to create such distinctions based on the assisted reproduction technique used. More likely, the drafters simply had not consideredthe possibility of posthumous conception. Indeed, such technology was mere science fiction when these clauses were first enacted. Starting in 2000, a handful of courts haveinterpreted similar provisions in the context of posthumous conception, and they have split in their approach. A few courts have applied the language literally to the facts, claiming that they have no authority to do otherwise; others have held that because the statutes were never intended to apply in this context, they were free to create their own rules regarding posthumously conceived children.

    These decisions highlight the uncertainty that exists when legislatures fail to address emerging issues in a deliberate and comprehensive way, and particularly issues with such social, moral and ethical implications.

    The National Conference of Commissioners on Uniform State Laws first addressed this issue in 1988 in its Uniform Status of Children of Assisted Conception Act. The Commissionersfirst provided that posthumously conceived children shall not be deemed a child of the deceased parent for any purpose. In 2000, the commissioners switched courseand recognized a parent-child relationship, but only if the decedent had consented in writing to be that child’s parent. This provision was added to the Uniform Parentage Act, though, and it was unclear how this rule would apply, if at all, in the probate context. Finally, just three years ago, the commissioners revised the Uniform Probate Code and provided that a posthumously conceived child shall be deemed a child of the deceased parent if (1) the decedent intended to be “treated as a parent” and (2) the child is born within 45 months after the decedent’s death.

    Despite the commissioners’ recent progress, their proposed approach has significant limitations. In addition, it has been adopted by only two states, and only a handful of otherstates have specifically addressed posthumously conceived children in any manner. Today, 33 states continue to follow the traditional afterborn-heirs approach, and, as a result, thestatus of posthumously conceived children in those states remains unclear. The 17 states that have addressed the issue are evenly split in their approach. Nine states (includingMinnesota) have denied status to posthumously conceived children, while eight states have granted status to posthumously conceived children in limited circumstances. Even among these eights states, however, the approaches vary considerably.

    Looking Forward

    Posthumous conception raises sensitive moral, ethical, and legal issues that many legislators would prefer to avoid and simply pass on to judges. The technology is here, though, and it is being used increasingly each day. The time has come for all legislatures to take up this challenge, think critically about and debate the issues, and draft clear, comprehensive provisions that will inform and guide their citizens.

    Most judges and scholars (and the few legislatures) who have addressed the issue agree the three primary goals of any response should be to ensure the efficient administration of estates, carry out the decedent’s intent, and protect the children’s best interests. However, there is no consensus regarding which of these goals should receive priority.

    In my forthcoming article, I argue that these goals need not be mutually exclusive; rather, each can be achieved with appropriate legislation. The article provides a comprehensive blueprint for legislatures to consider as they tackle this issue and reviews the statutory and judicial approaches proposed to date, breaks down the strengths and weaknesses of each, and introduces two new concepts that bridge the gaps in the prior approaches. If adopted, these improvements will provide flexibility not found in prior approaches and, as a result,further each of the three key goals.

    Author: Benjamin Carpenter joined the University of St. Thomas School of Law faculty in the fall of 2010 after practicing law for eight years. He teaches Lawyering Skills I, Lawyering Skills II, and Federal Estate and Gift Tax. His research interests include the intersection of law and technology and the psychology of persuasion.

    NOTES1 Support for all statements in this article can be found in Carpenter’s forthcoming article, A Chip Off the Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It, 21 Cornell J.L. & Pub. Pol’y (forthcoming 2012). This article is available at http://papers/ssrn.com/sol3/papers.cfm?abstract_id=1963973.

    2 Although Catholicism rejects most forms of assisted reproduction, other religions do not. Even among many Catholics, however, individuals who have begun the in-vitro fertilization process may choose to use the embryos they created with their partner rather than destroying them.

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