The inadequacies of Missouri intestacy law: addressing the rights of posthumously conceived children.

• Author: Naguit, Kimberly E.

1. INTRODUCTION

   When Sergeant Dayne Darren Dhanoolal of Columbus, Georgia, died on March 31, 2008, while serving in Iraq, Kynesha Dhanoolal, his widow, hoped to be able to fulfill his expressed wish of having children. (1) She obtained a temporary restraining order in federal court to prevent the military from embalming Sergeant Dhanoolal until someone extracted and froze samples of his sperm. (2) Mrs. Dhanoolal planned to be artificially inseminated with the sperm as early as that summer. (3)

   While this may sound like the stuff of science fiction, science and technology no longer limit human reproduction to the act of sexual intercourse. Couples today have options such as surrogacy, artificial insemination, and in vitro fertilization--techniques collectively referred to as assisted reproductive technology. In fact, it is now even possible for a couple to conceive a child with both parents' genetic material, even if one parent dies before actual conception. (4) Known as posthumous conception, this form of conception is occurring in increasing numbers. (5) Some spouses resort to posthumous conception upon the death of a spouse from a terminal illness. (6) The ongoing military engagements in Iraq and Afghanistan and continued U.S. troop casualties have only increased the number of soldiers' widows who use in vitro fertilization and other methods to conceive children from the extracted gametes of their spouses. (7)

   Recently, courts have started to address the inheritance rights of posthumously conceived children. The current statutory and common-law framework in Missouri, as in many other states, "revolves around the idea that parent-child relationships are created by a man and a woman having sexual intercourse and a child being born as a result." (8) With the rapid advances in reproductive technology, however, this concept of parentage is clearly outdated and in need of improvement. Missouri law does not adequately address the issues of intestate succession and inheritance for children born through posthumous conception. To resolve this gap in state law, the Missouri legislature should adopt the 2008 amendments to the uniform Probate Code (UPC). This note examines the provisions of the 2008 amendments, legislation and case law in other states, and the possible ways a Missouri court could decide a case based on its current statutory framework. in the end, adopting these provisions in Missouri would do much to clarify the rights of inheritance for the posthumously conceived.

2. UNIFORM PROBATE CODE AMENDMENTS

   Currently, seventeen states have enacted the UPC, including Minnesota, North Dakota, South Dakota, and Nebraska. (9) Prior to the 2008 amendment to the UPC, Section 2-114(a) stated that "for purposes of intestate succession by, through, or from a person, an individual is the child of his [or her] natural parents, regardless of their marital status." (10) Additionally, Section 2-114(c) prevented a child from inheriting from her natural parent "unless that natural parent has openly treated the child as his [or hers], and has not refused to support the child." (11)

   In the summer of 2008, the National Conference of Commissioners on Uniform State Laws (NCCUSL) created a new subpart to the Uniform Probate Code on parent-child relationships to address more specifically how to treat children created through assisted reproductive technology. (12) In addition to new statutory language, the 2008 amendment included a detailed commentary explaining the need for the amendments. (13) According to one researcher, "10 to 15 percent of all adults experience some form of infertility." (14) Data from the Center for Disease Control of the U.S. Department of Health and Human Services shows that, excluding artificial insemination, the number of children born from assisted reproductive technology more than doubled from 1996 to 2004. (15) Increased use of reproductive technology, along with growing numbers of unmarried individuals who want children, have raised legal questions concerning children born through assisted reproduction. (16) With its promulgation of the 2008 amendment, NCCUSL now advocates that children "are entitled to the respect the law gives to family choice," regardless of whether parents have a child through sexual intercourse or assisted reproductive technology. (17) Section 2-120 of the 2008 UPC amendments addresses the inheritance rights of children born through these new technologies. (18)

   UPC Section 2-120 has three pertinent provisions regarding posthumous conception. Section 2-120(f) states that a parent-child relationship exists between a "child of assisted reproduction" (19) and an individual who consented to assisted reproduction by the birth mother and intended to be the child's other parent. (20) The simplest way to establish an individual's consent is to prove, in light of all facts and circumstances, that he or she signed a record demonstrating consent before or after the child's birth. (21) If no signed record exists, it must be shown that the person intended to "function as a parent of the child ... but was prevented from carrying out that intent by death, incapacity, or other circumstances," or established, by clear and convincing evidence, that the individual "intended to be treated as a parent of a posthumously conceived child." (22)

   The second provision, Section 2-120(h), presumes parentage for an individual consenting to assisted reproduction under subsection (f) if the birth mother is a surviving spouse of the individual, no divorce proceedings are pending at the time, and clear and convincing evidence does not indicate the contrary. (23)

   Section 2-120(k) is the third pertinent provision, which places a time limit on when a posthumously conceived child can inherit under intestate succession law. Typically, once a parent-child relationship is found to exist, a child must survive the deceased parent for 120 hours to inherit from him or her. (24) Since a posthumously conceived child obviously cannot meet that requirement, Section 2-120(k) gets around this by stating that such a child will be treated as if she were in gestation at the time of the parent's death, as long as the child was actually "in utero not later than 36 months after the individual's death [or] born not later than 45 months after the individual's death." (25) NCCUSL used a three-year period, plus an additional nine months, in order to give a surviving spouse or partner sufficient time to grieve, decide whether or not to use assisted reproduction, and have a child despite unsuccessful attempts. (26) If a parent-child relationship is established under Section 2-120, "the parent is a parent of the child and the child is a child of the parent for purposes of intestate succession." (27) With UPC Section 2-120, it is clear that, for purposes of intestate succession, NCCUSL seeks to treat posthumously conceived children no differently from those born during the decedent's lifetime, as long as the decedent evinced some kind of consent.

3. LEGAL BACKGROUND

   1. Similar Legislation in Other States

      Within the past decade, various states have passed legislation to address the problems of inheritance for children conceived with a person's genetic material after that person's death. These statutes specify whether such a child can inherit from her deceased parent and under what circumstances. The following states explicitly recognize inheritance, or impliedly do so by affirming the existence of parentage:

      Connecticut: In Connecticut, a child born through artificial insemination is deemed the "naturally conceived legitimate child of the husband and wife" if they consented to artificial insemination with donor sperm. (28) Such a child can inherit the estate of her consenting parents or their relatives, but not from her genetic father. (29) Likewise, the parents of the child can inherit from their child if the child dies intestate. (30) The Connecticut Supreme Court has only addressed these statutes in one case (31) and has not yet determined whether they would apply to posthumously conceived children.

      Louisiana: Louisiana's statute treats a child conceived after the decedent's death as a child of the decedent if he "specifically authorized in writing his surviving spouse to use his gametes." (32) The child has the right to inherit if she is born to the surviving spouse within three years of the decedent's death and has the gametes of the decedent. (33) The law was enacted in 2001 and amended in 2003 to clarify that a child could inherit from the same decedent as if the child was "in existence" at the time of the decedent's death. (34)

      California: Under the California Probate Code, a posthumously conceived child of the decedent is deemed to have been born during the decedent's lifetime if it is proven, by clear and convincing evidence, that the decedent specified in writing that the decedent's genetic material could be used for posthumous conception. (35) Additionally, the declarant must sign and date the writing, as well as designate someone to control the use of her genetic material. (36) This writing, however, can be revoked or amended if the decedent signs and dates a later document evidencing her intent to do so. (37) Upon the decedent's death, the person designated to control the decedent's genetic material must give notice to the distributor of the decedent's estate. (38) This notice must be given within four months after a decedent's death certificate issues, or after a court determines the fact of a decedent's death, whichever occurs first. (39) Finally, the child must have the decedent's genes and be in utero within two years of issuance of the decedent's death certificate or a judgment on the fact of her death, whichever comes first. (40)

      Virginia: Virginia allows for a child born through artificial insemination to be a child of a decedent if born within ten months of the decedent's death. (41) Yet if the decedent "die[d]...