Frozen in Time: Planning for the Posthumously Conceived Child - June 2008 - Trust and Estate Law

• Publication year: 2008
• Pages: 45
• Citation: Vol. 37 No. 6 Pg. 45

37 Colo.Law. 45 Colorado Lawyer 2008.

2008, June, Pg. 45. Frozen in Time: Planning for the Posthumously Conceived Child - June 2008 - Trust and Estate Law

The Colorado Lawyer
June 2008
Vol. 37, No. 6 [Page 45]

Articles
Trust and Estate Law
Frozen in Time: Planning for the Posthumously Conceived Child
by Bruce A. Fowler, Teresa C. Baird

Trust and Estate articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation guardianships and conservatorships, and tax planning.

Article Editors

David W. Kirch, of David W. Kirch, P.C., Aurora - (303) 671-7726, dkirch@qwest.net; Constance D. Smith, of Rothgerber Johnson & Lyons LLP - (303) 623-9000 csmith@rothgerber.com

About the Authors

Bruce A. Fowler, a Director with Fairfield and Woods P.C., is a member of the firm's Estates & Trusts Department, where he focuses his practice on estate planning, estate and trust administration and litigation, and tax-exempt organizations - (303) 830-2400, bfowler@fwlaw.com. Teresa C. Baird is an associate in the Fairfield and Woods, P.C. Estates & Trusts Department. In addition to her estates and trusts work, she has experience in corporate technology and intellectual property, including trademark law, copyright law, domain name acquisition, and advertisement review - (303) 830-2400, tbaird@fwlaw.com.

Posthumously conceived children are becoming more than a theoretical concept with recent advances in reproductive technology. This article examines the inheritance rights of posthumously conceived children and addresses control issues of genetic material after the death of the donor.

With recent advances in the field of reproductive technology, estate planning attorneys must ensure that their clients' wishes regarding posthumously conceived children(fn1) are thoughtfully discussed and adequately reflected in their estate planning documents. In the past, a child would be born after the death of his or her parent only if the father died during the pregnancy or the mother died during delivery. Statutory law developed a method of protecting an afterborn child to permit that child to inherit from the deceased father or mother.(fn2) For example, the Colorado Probate Code provides:

[r]elatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent if the relative lives one hundred twenty hours or more after birth.(fn3)

In other words, a child "conceived" during the parents' lives is protected under the inheritance laws even if born after a parent's death and is considered a lawful heir.(fn4)

Today, however, advances in reproductive technology allow for conception of a child after the death of a parent, thus providing a new meaning to the definition of "afterborn child." This article discusses the current state of the law concerning posthumously conceived children, outstanding issues with the law, and steps an attorney should follow to make sure clients are adequately informed of their options.

Cryopreservation - Creating the Possibility of Posthumous Conception

Genetic material - that is, embryos, semen, or eggs - can be stored for many years through a method known as cryopreservation (the technology of freezing used to preserve individual gametes and embryos). This allows for the conception of a child long after the death of one or both of the genetic parents.(fn5) Individuals opt for cryopreservation of their genetic material for numerous reasons.

Cryopreservation of sperm may be done by a man who: is assigned to combat zones during war time; is diagnosed with cancer or a terminal illness; or is engaging in a dangerous profession, such as that of a firefighter, police officer, or athlete.(fn6) Such cryopreservation could enable, with proper authorization, a spouse or girlfriend to use the stored sperm after the man's death, thereby allowing for the possibility of conception after the death of the male donor.

A woman who has difficulty becoming pregnant may undergo in vitro fertilization, whereby her eggs are extracted and fertilized by sperm in a laboratory, and the resulting embryo is transferred to the woman's uterus.(fn7) Because in vitro fertilization is not always successful, numerous embryos are created in the process and cryopreserved.

Accordingly, a couple's embryos may be stored for many years, leading to the possibility of conception after the death of either individual. For instance, a woman may implant the cryopreserved embryo years after the death of her husband. Additionally, a man may use the cryopreserved embryo after the death of his wife with the assistance of a surrogate. In either scenario, a child could be conceived years after the death of a biological parent.

Additionally, recent technological advances allow a woman to cryopreserve unfertilized eggs. This provides a woman the opportunity to potentially preserve her fertility before the decline in fertility that results from the natural aging process.(fn8) The long-term preservation of eggs could result in a child's birth after the death of the genetic mother.

A procedure called post-mortem sperm procurement allows a widow to obtain viable sperm from her deceased husband's cadaver.(fn9) The legality and ethical implications of such post-mortem sperm procurement is a contested issue.(fn10) However, at this time, there is at least a possibility that by retrieving sperm after the death of her husband, a woman could conceive after his death.

Thus, a child may be posthumously conceived in the following situations: use of cryopreserved sperm by a widow or girlfriend to conceive after the death of the sperm donor

use of cryopreserved embryos for conception after the death of the male or female who donated the sperm or egg

use of a cryopreserved egg after the death of an egg donor

post-mortem sperm procurement by a widow or authorized medical agent for posthumous conception.

In light of these technological advances, a few states, including Colorado, have enacted "statutes explicitly defining the inheritance rights of posthumously conceived children."(fn11)

Colorado Statutory Law and Posthumous Conception

Colorado has adopted language similar to that in the Uniform Parentage Act (UPA) to address the issue of posthumously conceived children. Specifically, CRS § 19-4-106 provides:

If a spouse dies before placement of eggs, sperm, or embryos, the deceased spouse is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased spouse would be a parent of the child. . . .(fn12) [Therefore, a]bsent consent in a record, the death of a [spouse] whose genetic material is subsequently used either in conceiving an embryo or in implanting an already existing embryo into a womb ends the potential legal parenthood of the deceased.(fn13)

By its use of the term "spouse," this provision appears to limit the application of the right to consent in a written record to the parental status of a posthumously conceived child to married individuals.(fn14) On the other hand, some states, such as Delaware and Wyoming, have adopted the UPA without any variations to the official text, which uses the term "individual."(fn15) For example, § 14-2-907 of the Delaware Code provides:

If an individual who consented in a record to be parent by assisted reproduction dies before placement of eggs, sperm or embryos, the deceased individual is not a parent of the resulting child unless the deceased individual consented in a record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child.(fn16)

Statutes referring to an "individual" are more inclusive, because they do not limit the application to married persons. Whether a court would uphold an unmarried individual's written consent in Colorado has not been addressed.

The official comment to this section of the UPA states that it is designed primarily to avoid the problems of intestate succession[,] which could arise if the posthumous use of a person's genetic material leads to the deceased being determined to be a parent.(fn17)

However, the statute is not limited on its face to application to intestate estates, and also would apply in determining the descendants under a will or trust of a decedent.(fn18) Therefore, an estate planning attorney should advise clients to address posthumously conceived children in their estate planning documents.(fn19)

Estate Planning Considerations

Although CRS § 19-4-106 attempts to address the issue of the inheritance rights of a posthumously conceived child, there are many gaps in the law that the estate planning attorney must be sure to address with the client. It is useful to see how courts have addressed the issue in the absence of any statutory authority, and then to consider how CRS § 19-4-106 would apply to various scenarios. It also is important to consider possible control issues on the death and disability of the donor of the genetic material.

Class of Persons

A recent New York County Surrogate Court decision addressed whether posthumously conceived children were included in the definitions of "issue" and descendants" in the decedent's trust agreements.(fn20) Martin, the grantor executed...