Parenthood from the Beyond

As the result of modern advances in technology, more and more children are being born through in vitro fertilization. Another reason for this trend is that a greater number of career oriented professional women are choosing to focus on their careers at ages when, historically speaking, most women were focused on having children. Because many such career oriented women still wish to have families later on in life, they commonly will opt to save their eggs when at their most fertile, so they will not be disadvantaged down the road when they do wish to become pregnant, but might be at an age where traditional biological conception is no longer possible. Additionally, in vitro fertilization can provide infertile couples the ability to have children through donated embryos. While in vitro fertilization can be a great benefit to many families, it also can be the cause of many problems. Some of these problems arise within the legal context of inheritance, which in recent years has been complicated by the modern trend of in vitro fertilization.

For example, imagine a couple has several children through in vitro fertilization and has several embryos remaining at the point where they do not wish for any additional children. The couple then decides to donate the embryos rather than destroy them, so that another couple facing fertility problems can utilize the healthy remaining embryos. New parents then use those embryos to have a child, which has the genetics of the mother from the first couple. Now, if the woman whose embryo is used to create the child is wealthy, what prevents the child from claiming rights to a share of the woman’s estate upon her death. Even if the woman never knew the child, or even knew of its existence, during her life, genetically, the child is hers. It is not uncommon for a situation to arise where a child is conceived after the genetic mother has already died.

Very few states have legislation in place that specifically addresses posthumously conceived children. The Uniform Status of Children of Assisted Conception Act (USCACA) has been developed to provide guidance in this area, but, as of now, very few states have adopted it. The USCACA dictates that a child conceived posthumously or prior to one parent’s death, but implanted after death, would not be the child of the genetic parents. (USCACA, Section 1). However, because very few states have adopted the USCACA or enacted laws addressing the issue, the determination of whether posthumously conceived children have the right to claim a share of a deceased parents’ estate is often left to the courts.

Because there is limited case law in this area, if a couple has frozen sperm or embryos, it might be prudent for them to specify in their testamentary documents how posthumously conceived children are to be treated with regard to inheriting from the deceased parent. This might be wise not only if the particular state does not have a statute addressing posthumously conceived children, but if the parent wants their potential posthumous heirs to inherent differently than those heirs would under the state statute. Courts in most states look to the intent of the decedent when determining inheritance under a will, and a provision in a will specifically addressing how posthumously conceived children are to inherent can serve as conclusive proof of the decedent’s intent with regard to procreating after their death and the distribution of their estate.

As medical technology advances, posthumous conception and other related procedures, such as cloning, will presumably become more common and present more complex legal issues that challenge the cultural and ethical bounds of society. Once one issue is decided, a new one will inevitably arise with further advances in reproductive technology. If you or someone you know wishes to take the possibility of posthumous conception into account in an estate plan, please do not hesitate to contact the experienced estate planning attorney’s at Chepenik Trushin LLP, who are ready, willing, and able to assist in creating an estate plan that takes into account the most recent developments in technology and the law. Please do not hesitate to contact us.