Here’s a problem that was hardly imaginable a couple of generations ago. Sperm, ova or embryos are preserved for future use. The donor (or one of the donors) dies, but the preserved sperm, ova or embryo is used to conceive a child after the donor’s death. Does that child have rights under the donor’s estate plan?
The right of a child, conceived prior to but born after a parent’s death, is clearly established at law. However, the rights of children conceived after the death of a parent are less clear. Most jurisdictions have consistently denied inheritance rights to a child conceived with genetic material from an anonymous donor. However, where the donor is known, some experts argue that the contingent interest of a child conceived posthumously is equivalent to that of a child conceived prior to a parent’s death.
Enter the importance of a clear estate plan. Assuming the donor has provided written consent to posthumous use of their genetic material (which is a legal requirement in Canada), without instructions regarding a time limit for use, the estate trustee must decide whether to distribute the assets and exclude the potential unborn child, or to suspend distribution until the stored materials have been used or destroyed.
In short, it can get complicated and litigious if the estate plan is unclear. For that reason, it’s important for those who have stored genetic material – or whose beneficiaries have stored genetic material – to clearly address their intentions in terms of how potential biological children (or grandchildren) are to be treated.
One of our recent issues of The Probater https://hullandhull.com/wp-content/uploads/2017/03/March_10_2017_Probater_proof.pdf explores estate concerns relating to fertility in more detail, and provides a checklist that can help cover off fertility issues in the drafting of a will.
For a review of the issues related to the need for written consent to use genetic material posthumously, this article https://www.shebbearelaw.com/can-a-spouse-use-stored-sperm-eggs-or-embryos-after-their-partner-dies/ reviews a recent British Columbia case and provides some excellent tips for those who have stored genetic material for future use.
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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the law relating to consent to the posthumous use of reproductive materials, the British Columbia Supreme Court’s decision in K.L.W. v. Genesis Fertility Centre, and estate planning considerations when dealing with clients who have stored or donated reproductive materials.
Last month, an amendment to Minnesota’s Uniform Probate Code came into effect to limit the rights of children conceived after the death of one or more parents.
The addition under 524.2-120 of the Code states as follows (at Subdivision 10):
Notwithstanding any other provision of this section and subject to section 524.2-108, a parent-child relationship does not exist between a child of assisted reproduction and another person unless the child of assisted reproduction is in gestation prior to the death of such person.
The exception at section 524.2-108 provides that a child conceived before and born after death, who survives for a period of 120 hours, shall be treated as if living at the time of death of the deceased. However, the update in the legislation clarifies that a child conceived after death does not constitute a child and would not, therefore, be entitled to related rights to inherit on intestacy or as a member of a class of beneficiaries created under a will.
In many other jurisdictions, including Ontario, there is limited clarity with respect to the rights of individuals conceived after death of a parent. While the Succession Law Reform Act specifies (under the definition of “child” at section 1) that a child conceived before and born after death will be treated as if he or she had been living at the time of death of a parent or other family member, the same cannot be said of posthumously-conceived children with any certainty.
In certain circumstances, a surviving spouse may have the right to use genetic materials, being sperm or ova of the deceased spouse, to conceive a child in accordance with the terms of the Assisted Human Reproduction Act. However, there is no legislation in Ontario that explicitly provides or denies children conceived after death status as a child, as if conceived or born after death. Case law in other jurisdictions suggests that inheritance rights to a parent’s estate and entitlement to death-related benefits may be more likely to attach to a child conceived after death if (1) a genetic relationship between the deceased parent and child exists, (2) consent is given to the posthumous use of genetic materials for conception, and (3) the evidence available suggests that the deceased agreed to support a child conceived using the preserved genetic materials.
As rates of assisted reproduction continue to increase, it will be interesting to see how this area of estate law develops in Ontario to address the issue of rights of posthumously-conceived children.
Thank you for reading and have a great weekend!
Doreen So recently wrote about Howard W. Jones and how the developments that he made in reproductive technologies have the potential to impact estate planning and intestacy laws. An issue encountered in recent news may give rise to further uncertainty when it comes to the estates of individuals conceiving and being conceived through assisted reproductive technologies.
An article appearing in the Hamilton Spectator tells the story of how the paternity of a child conceived in vitro in Washington recently caused considerable confusion. After their baby had been born, the couple questioned whether the wrong sperm sample had been used, as the child’s blood-type was inconsistent with those of its parents. After this discrepancy came to light, the couple arranged for a DNA test to be conducted. The testing confirmed that the sperm donor and intended father was not a biological parent of the baby. Surprisingly, the results of the DNA testing revealed that the man was (biologically, at least) the baby’s uncle.
A geneticist at Stanford University investigated the situation and determined that the cause for the unplanned degree of relatedness between the mother’s husband and their child was a what is known as a chimera, rather than an error made at the fertility clinic.
Chimerism, also known as the “vanishing twin effect”, occurs when two zygotes fuse into one, which is estimated to occur in as many as one out of eight pregnancies. The fusion of two twins results in one embryo that may consist of DNA derived from both zygotes. In this specific case in Washington, some of the sperm donor father’s germline cells, being those that have the capacity to develop into eggs or sperm, were derived from his unborn fraternal twin. As a result, 90% of the man’s sperm contains his own DNA and the other 10% contains the genetic material of his “brother”, giving rise to the ability of the man to father his own genetic nephew or niece. The article reports that the man has another child, in addition to the newborn, who is, in fact, his biological child.
The incidence of chimerism, which is believed to be increasing with prospective parents more frequently obtaining assistance from fertility clinics, further complicates the issue of entitlement to a biological parent’s estate on intestacy and qualification as a member of a class identified within testamentary documents. It will be interesting to observe how the case law may develop to address these issues.
Thank you for reading and have a great weekend.
Today on Hull on Estates, Moira Visoiu and Doreen So discuss estate law issues that may arise through the use of artificial reproductive technologies and Ian Hull’s paper, “Fertility Law in the Context of Estates”.
Congratulations again to Sara Cohen for being recognized as one of the Top 25 Most Influential by Canadian Lawyer in respect of her work in Canadian fertility law.
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Click here for more information on Moira Visoiu.
Howard W. Jones, the surgeon who pioneered in vitro fertilization in the U.S., passed away at the age of 104 on July 31, 2015. The work of Dr. Howard Jones and his late wife Dr. Georgeanna Jones led to birth of the first American child as the result of in vitro fertilization in 1981. Dr. Howard Jones was 70 years of age at the time of this groundbreaking triumph. Since that time the Jones Institute for Reproductive Medicine at the Eastern Virginia Medical School has helped bring 4,000 children into the world through in vitro fertilization.
Despite his advanced age, Dr. Howard Jones never fully retired. He maintained office hours at the Institute even after his 100th birthday. Even more incredibly, Dr. Howard Jones published a memoir on in vitro fertilization last year and he was working on a new book of his late wife’s accomplishments as a reproductive endocrinologist at the time of his death.
To date, more than 5 million births have occurred as the result of in vitro fertilization around the world. As reproductive technologies such as in vitro fertilization continues to help individuals around the world achieve pregnancies, one can only imagine the various implications that donated sperm/eggs and surrogacies may have on will drafting and the laws of intestacy.
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