Kris Knaplund is one of the leading American scholars in the area of postmortem conception and its theoretical and doctrinal implications for the field of inheritance law. In her article, Assisted Reproductive Technology: The Legal Issues, Knaplund lays out the complex planning issues that arise in a variety of scenarios involving Alternative or Assisted Reproductive Technology (ART). This clear and succinct article is a must read for professors, practitioners and students alike. Knaplund educates readers about the increasing number of situations and clients that involve ART, ranging from a trust beneficiary who is planning to use a gestational surrogate to a hospital faced with the widow of a recently deceased man who wants to harvest his sperm to have future children.
Knaplund begins by defining assisted reproductive technology as “the handling of gametes (sperm or ova) outside the human body in order to achieve a pregnancy.” She notes that the three most common forms of ART are assisted insemination, in vitro fertilization, and gestational carriers. She then proceeds to illustrate the kind of legal issues that attach to each of the three forms. For example, in assisted insemination (more commonly known as artificial insemination) the sperm donor is typically not the legal father if the sperm has been given to a licensed physician. But if a donor dispenses with the physician and donates directly to the intended mother, the statutory safe harbor no longer applies. Knaplund outlines several state cases including Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Ct. App. 1986) where that scenario results in the sperm donor being declared the resulting child’s legal father.
Knaplund then provides a brief description of the parentage issues that can arise with the second and third forms of ART, noting that the use of donated gametes in IVF can result in questions of who may be a child and parent. This is also true in the case of a gestational surrogate and Knaplund notes the failure of state law to address this issue on a consistent basis, if at all. The Uniform Parentage Act (UPA) does contain a comprehensive framework that requires the intended parents to obtain court approval of any surrogate arrangement, with checks and balances built in to ensure that all the parties to the contract fully understand the rights and duties involved. One of the interesting points Knaplund makes is that, under the UPA, only heterosexual couples can seek such judicial approval. The result is that a same-sex couple seeking such validation would be denied judicial relief and the gestational carrier would be deemed to be the legal mother of the resulting child. Unlike the UPA, the 2008 amendments to the Uniform Probate Code (UPC) allow for a parent-child relationship to be established either by court order or by the intended parent functioning as a parent within two years of the child’s birth. This second method thus allows for an intended parent to establish legal parentage, even when there may be an unenforceable contract. However, most states have no statutes regulating gestational agreements and thus the intended parents usually adopt the child to establish legal parentage.
Having established the complexity of legal parentage issues that can arise when ART is used, Knaplund goes on to posit three important issues that arise and that should be addressed by scholars, practitioners and legislators: (1) Who is a descendent when donated gametes are used?; (2) Should estate planners anticipate that sperm or ova may be retrieved and used after a person has died; and (3) How long should the estate be left open awaiting a postmortem conception child to be born.
First, Knaplund illustrates the question of “who is a descendant” using the following case: settlor creates a trust in 1959 for his “issue” or “descendants” which provides that “adoptions shall not be recognized.” Forty years later, the settlor’s daughter and her husband contract with a gestational surrogate and they use a donated egg and the husband’s sperm to have twins. A California court determined that the daughter and her husband were the twins’ legal parents. A New York court was asked to interpret the trust and it found that the twins could be beneficiaries, even though New York does not recognize surrogacy contracts. (Since the California court conferred legal parentage on the settlor’s daughter, she did not have to adopt the twins.) The New York court declared that its public policy would not prohibit the court from giving recognition to the California court’s determination of parentage.
Second, it is not only estate planning clients that lawyers need to counsel on ART matters. ART raises ethical issues for clients like hospitals who are now often asked to retrieve sperm and sometimes even ova from patients who are in a persistent vegetative state or within 48 hours of death. Knaplund notes several cases, including In re Daniel Thomas Christy, No. EQVO68545 (Sept. 14, 2007) where an Iowa court ordered a hospital to go forward with postmortem sperm retrieval, finding that the decedent’s consent to be an organ donor under the state’s version of the Uniform Anatomical Gift Act extended to posthumous sperm retrieval. Knaplund also highlights the issues raised by previously deposited sperm, including whether a decedent can bequeath frozen sperm for future procreation.
Finally, Knaplund turns to a third issue that is very central to the probate administration process. If the goal of probate is to gather assets, pay debts and distribute to beneficiaries as efficiently as possible, ART by its very nature raises tremendous problems for the goal of a quick and efficient conclusion to the probate process. Knaplund cites UPC §2-120 as one statutory framework that gives courts explicit guidance as to the time by which a postmortem conception child must be either in utero—not later than 36 months after the decedent’s death—or be born—not later than 45 months after the decedent’s death. She goes on to describe the patchwork of approaches, or failure to even have an approach, to this issue in the various states. The reader is left with the a strong sense that this inconsistent approach must continue to be the focus of trusts and estates scholars, practitioners and legislators if we are to have a fair and comprehensive solution to the issues ART raises for our field.
In the final part of her article, Knaplund concedes that science is “rapidly outpacing the law” in this area of ART. While these developments challenge us as scholars and practitioners, they generate intellectual excitement and new opportunities to theorize as well. With crisp, clear prose, Knaplund has given the reader an excellent primer in the brave new world facing all of us involved in inheritance law and estate planning.