Fetal personhood statutes—laws that grant the same legal protections to embryos as to live children—have been the subject of significant discussion since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the federal constitutional right to abortion. The impact of these laws was magnified by the Alabama Supreme Court’s recent decision in LePage v. Ctr. for Reprod. Med., P.C., holding that frozen embryos are children for purposes of Alabama’s Wrongful Death of a Minor Act and must be treated the same as children born alive regardless of “developmental stage, physical location, or any other ancillary characteristics.”1 While the impact of fetal personhood statutes on abortion, contraception, and assisted reproduction may be rather obvious, their effects on trusts and estates law or tax law are more speculative. Yet, this is the focus of Bridget Crawford’s and her students’ (Alexis C. Borders and Katherine Keating) article, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, which demonstrates how fetal personhood laws have the potential to destabilize the transmission of property at death, specifically the rules governing intestacy, trust administration, trust duration, and the generation-skipping wealth transfer tax.2
The article demonstrates how fetal personhood statutes might disrupt settled understandings of who may inherit under intestacy laws. It points out that if an embryo is treated as a person under the rules of intestacy, then it has the same rights to inherit from a parent and through a parent (from a grandparent, aunt or uncle, for example) as a living child. The article illustrates how such a right could present challenges when distributing an intestate decedent’s estate since it might require determining whether any surviving family members had pregnant partners when the decedent died. It explains:
[A]ssume that Helen, a widow, dies intestate survived by her adult daughter Jane and her adult son Joe. At the time of Helen’s death, Joe’s partner is pregnant with their first child. Just a few days after Helen dies, Joe himself is killed in a tragic accident. Helen’s intestate heirs are Jane and the zygote-embryo-fetus in gestation. Unless the personal representative inquires whether Joe’s partner was pregnant, the personal representative might erroneously believe that Jane is Helen’s sole surviving heir and distribute the entire estate to Jane. (P. 1178.)
The article further illustrates the potential inconsistency created by fetal personhood statutes that confer greater rights to an embryo than to a living child who was posthumously conceived through assisted reproduction. Most states do not recognize a posthumously-conceived child as the child of the deceased parent for purposes of intestacy based solely on a genetic connection but may instead require evidence that the decedent affirmatively consented to posthumous conception and to financial support of the child. In contrast, states have yet to address whether similar rules and restrictions would apply to embryos.
The article further illustrates the challenges that fetal personhood statutes may create for trust administration. It explains that if a trust requires payments to the grantor’s descendants, and embryos have the same rights to distributions as descendants born alive, the trustee may need to discover the existence of all of the embryos (including frozen embryos that have not been implanted) before making payments. The trustee might also need to figure out how to make distributions to an embryo without the benefit of instruments available to transfer property to a child, such as the Uniform Transfers to Minors Act, which envision payments to a child born alive.
The article also uncovers how fetal personhood statutes could extend well-settled time limits on the duration of a trust if a frozen embryo (which may remain frozen in perpetuity) is treated as a “life in being” for purposes of determining how long the trust can continue. Thus, fetal personhood statutes may facilitate the creation and maintenance of perpetual trusts and allow wealthy families to avoid paying taxes due when the trust terminates. The article illustrates how fetal personhood laws could also facilitate avoidance of the generation-skipping transfer tax.
After outlining the potentially far-reaching and unintended effects of fetal personhood laws, the article considers several reforms to limit their reach. While it suggests that legislators should amend their state’s fetal personhood statute to prevent the destabilization of well-established rules governing the transmission of property at death, it acknowledges that given political constraints, such action is unlikely. Consequently, the article turns to the courts and proposes rules of construction that judges should adopt to limit the effect of fetal personhood statutes on inheritance laws and trust administration. Specifically, it proposes that, unless a contrary intent is expressed in a will or trust, judges should conclusively presume that the testator or settlor/grantor did not intend for an embryo to be a beneficiary. The article further proposes that a frozen embryo not be treated as a measuring life for purposes of determining the time limit on the duration of the trust. Finally, the article addresses embryo adoption which, in my view, may increase if more states adopt fetal personhood laws and prohibit destruction of embryos, thereby forcing individuals with more embryos than they plan to implant to either freeze them indefinitely or donate them to individuals seeking to adopt and implant them. The article proposes that judges treat an embryo who is adopted before it develops into a living child as the child of the adoptive parents for purposes of the generation-skipping transfer tax.
Fetal personhood laws threaten the lives of pregnant persons and deny individuals seeking to grow their families access to assisted reproduction. Given these dire effects, readers may wonder why Crawford, a well-established feminist scholar, would choose to focus on the trust and estates consequences of these laws rather devote all of her energies to advocating for eradication of fetal personhood laws. The answer—pragmatism— is one that more scholars should adopt if they want their work to have an impact regardless of the political environment. Dobbs is unlikely to be overturned in the foreseeable future and fetal personhood laws are unlikely to be abolished. Therefore, as the article explains, “drawing attention to the unintended, far-reaching, and disruptive consequences of fetal personhood statutes is a pragmatic and parallel (if incrementalist) line of advocacy and scholarship advancing gender justice.” (P. 1184.)
I will be teaching trusts and estates for the first time in almost a decade and have been thinking about how to engage my students—the majority of whom are in their last semester of law school and are mainly taking the course for the bar exam. Students do not expect to discuss fetal personhood laws in a trusts and estates course, but I plan to use this article to illustrate how the laws they are discussing in courses on reproductive justice, family law, constitutional law, health law, and gender and the law, for example, also affect estates and trusts. I am confident students will be quite engaged that day.
- ___ So.3d ___, 2024 WL 656591, at *4 (Ala. Feb. 16, 2024).
- The article also discusses how fetal personhood statutes may impact income tax laws but this Jot focuses on the article’s discussion of these laws’ implications for estates and trusts only.
