CSP’s Surrogacy Experience Really Counts

The following comment from another agency was recently shared with us:

We have found that our chief competitors do extensive prescreening before a match.  This is a way for them to charge you more up front, give you a false sense of security and in the long run, end up having no extra added value.  The medical screening could be different when it comes time to match the Surrogate.    Also, the very involved psychological screening isn’t necessary and drives up your costs; our screening process is so involved that we’ll pick up psychological problems before matching.  Finally, they’re very concerned with the Surrogate’s needs and not so much with the Intended Parents’ needs; we strike a healthy balance between the two.

This from an agency who claims to have been in the business in the field of surrogacy for 6 years and whose experience is based upon the fact that they became parents through surrogacy.  Their lack of experience and knowledge is rather startling. 

The following are our responses to each of those comments:

  1. 1.     Extensive prescreening is a way to charge you more up front:

All screening of a Surrogate Mother and her husband/partner, if any, is an expense the agency must incur.  If the Surrogate Mother does not pass psychological or medical screening, gets pregnant during the screening herself, changes her mind about participation in surrogacy, her financial circumstances change, she changes jobs and cannot take the necessary time off work needed, she needs to move to a different state, she divorces or there is illness in the family, etc., then the entire costs of all of her screening are borne by the agency.  It is unclear what they meant by “This as a way of charging more up front.”  Quite the contrary, does it make more sense for an agency to undertake minimal screening up front and pass the entire risk on to the Intended Parents? 

Secondly, all Intended Parents pay for the screening costs of the Surrogate Mother they work with.  Ultimately all Intended Parents will be billed for or have to pay directly for the costs of psychological screening, social disease testing, an appointment with a reproductive endocrinologist to evaluate her uterus and approve her to proceed with their program, and a background check. This is completely standard for EVERY surrogacy agency.

Therefore the only difference to be considered is WHO pays the costs of those candidates that do not pass the screening process.  In CSP’s program, a surrogate candidate that does not pass any stage of the screening  process is a cost incurred by CSP.  In other programs the cost is borne 100% by the Intended Parents.  Depending on what stage in the screening process the prospective Surrogate Mother reaches before she is deemed ineligible to participate, the prescreening costs can run anywhere from a few hundred dollars to approximately $4,000.00.  The upper figure is reached if the surrogate and her husband are completely psychologically screened, have undergone all social disease testing, background checks are completed and the surrogate was seen by an reproductive endocrinologist for her screening (including laparoscopy, etc) and she then decides not to continue as a surrogate  mother.

 

  1. 2.     Giving a false sense of security … end up having no extra added value

This statement is blatantly inaccurate.  What false sense of security can there possibly be in being matched with a Surrogate Mother and her husband/partner who is 100% psychologically screened, has undergone full social disease testing, completed her background check and been approved by a reproductive endocrinologist?  It is almost impossible to imagine that an agency is so lacking in knowledge and experience that they would ever utter such a shameful statement.  The value of a prescreened Surrogate Mother is immense, compared to that of a prospective Surrogate Mother who happened to complete an online questionnaire a week ago and was interviewed over the phone by an agency staff member whose only qualification, is that she was a Surrogate Mother once before.

  1. 3.      The medical screening could be different when it comes time to match the surrogate.

What CSP does is an initial screening with the Surrogate Mother and her partner to clear her for participation in our program. These tests are then transferred to the doctor’s office once the Surrogate Mother is matched and the doctor has the case. The IVF doctor will have additional testing for the Surrogate Mother, but that is in addition to what CSP has already done and the Intented Parents are not paying again for those same tests.

  1. 4.     The very involved psychological screening isn’t necessary

Of all the other statements this agency has made this is probably the one that causes us the most concern.  Are we to believe that they do not have their surrogate mothers undergo psychological screening by an independent licensed mental health provider?  This cannot be possible.  Do they claim that their apparent 6 years of experience equals that of a professionally trained psychologist or licensed psychotherapist with years of experience in the field of surrogacy?  Going back to the famous Mary-Beth Whitehead case out of NJ to the more recent tragic surrogacy case featured on the Dr. Phil show, it is painfully clear that surrogacy cases can go wrong, wreck lives and destroy a childhood when psychological screening is not performed and counseling is not available throughout the pregnancy.

  1. 5.     More concerned with the surrogate’s needs than the Intended Parents’ needs.

This is a statement that causes us to shudder.  Is it not in the interests of the Intended Parents that an agency take good care of their surrogate mother?  It is important that an agency deals with the needs of a Surrogate and her family so that these needs do not become overwhelming or become the burden of the Intended Parents.

Most agencies have a case manager – which is typically a prior Surrogate Mother – who is the contact person between the Intended Parents, the Surrogate and the agency.  CSP believes that each party needs a person whose sole responsibility is them. CSP has a case manager that works exclusively with Intended Parents.  The Surrogate Mother has a separate case manager who works with her.  The two case managers consult once a week with the counselor on the case. The counselor is a mental health professional – psychologist or psychotherapist – whose offers counseling, guidance and support to both the Surrogate Mother and the Intended Parent. 

Therefore the statement that CSP is more concerned with the needs of one party over the other is ridiculous. The Intended Parents have a representative, the Surrogate has a representative and both parties have a full time mental health professional working on their case. 

With other agencies if the Intended Parents do not get along with their case manager, they have no alternative.  That is the only staff member available to them. Their only choice is to retain an independent mental health professional at their expense to coordinate between them, their Surrogate and their case manager.  That cost would be an additional cost for the Intended Parents.

The danger lies in what an Intended Parent does not know about the surrogacy process.  CSP offers 30 years of experience.  In that time we have gained the experience from over 1,500 pregnancies, and we have dealt with couples from a variety of countries and cultures.  There is simply no substitute for experience.  CSP offers more experience than any other agency in the entire world.

Surrogacy and India

Surrogacy and India

International or cross-border surrogacy raises serious questions of law relating to citizenship, nationality, motherhood, parentage and the rights of a child to be raised by their parents.  It is for these reasons that is it important for intended parents to carefully assess the legal risks involved in surrogacy in the country the birth will occur and the country the child will be raised in.  (http://blog.indiansurrogacylaw.com)

Baby Manja’s Japanese citizenship took over six months to resolve following his birth in India.  A German couple has been fighting their legal system for almost two years to get citizenship for their test-tube baby born through surrogacy in India and their case remains unresolved.    An Israeli homosexual couple has been denied the rights to obtain an Israeli passport for their two-month-old child born in India.  These are but a few of the problems caused by surrogacy in India.  (http://timesofindia.indiatimes.com/city/mumbai/5-yrs-in-making-holes-in-draft-law/articleshow/5915005.cms)

Is surrogacy in India safe?

This is a complicated question and the answer is yes and no.  The reality is that surrogacy in India is approximately 5 years old.  Reproductive tourism is a new field to India and the laws are immature and untested.  By contrast the laws of surrogacy are 30 years old in California.  The courts in California have dealt with thousands of surrogacy cases and the laws are known, tested and upheld by the Supreme Court of California.  India’s largest surrogacy clinic has participated in 167 surrogacy cases from 2003 to 2010 whereas just one of the largest surrogacy agencies in CA has participated in over 1500 births.

In 2002 India passes laws making surrogacy legal in that country.   In India the law states that a surrogate mother’s name is not to appear on the birth certificate and that she has no right to keep the child.  Rudy Rupak, co-founder and president of Planet Hospital, a medical tourism agency with headquarters in California, said he expected to send at least 100 couples to India this year for surrogacy, up from 25 in 2007, the first year he offered the service.  Lower prices in India make surrogacy affordable by middle class Americans.  Under guidelines issued by the Indian Council of Medical Research, surrogate mothers sign away their rights to any children. A surrogate’s name is not even on the birth certificate.  (http://www.futurepundit.com/archives/005073.html)

However in the Jan Balaz case the birth certificate carries the name of the Indian surrogate mother and Mr. Jan Balaz, the German National.  The Supreme Court of India will soon decide if Mr. Balaz must undergo an adoption of his child from the surrogate mother thereby confirming that the surrogate mother is the legal mother of the child she carries.  This is of course not in accordance with the agreement the couple entered into with their surrogate mother and the agency.  The decision of the Supreme Court of India shall have an impact on all the ongoing cases of surrogacy in the country.   It is highly recommended that intended parents wait for a decision from the Supreme Court of India before entering into any surrogacy arrangement.  There are strict rules governing international adoption and these rules will most likely be breached if a surrogate mother receives compensation for her services.  The laws in India are immature, untested and unpredictable.  Over the next decade, with more experience in this field, India may find a solution to how to regulate surrogacy.  There is no certainty regarding the laws of surrogacy in India.

What are the pros and cons of surrogacy in India?

1.  “It’s not for nothing that countries like India are called the Third World. When you arrive there it’s like you’ve just stepped onto another planet.” (http://www.roadjunky.com/article/635/third-world-india).  The reality is that India is a country of sharp contrast between rich and poor.  For some India would be classed as a developing country.  The gap in India between rich and poor is far greater than in most Western nations, with little being done to try and close this gap. Indian society is extremely unequal, with little being done to ease the lot of the nation’s poverty-stricken majority, and international relief agencies being required to operate in rural parts of the country. Standards of public health are low, and the human rights record is very poor, with much police brutality and abuse against low-caste Indians, and legal rights for them negligible.  Until these changes, India will be classed as a developing country. (http://wiki.answers.com/Q/India_is_a_third_world_country)

2.  SART figures for clinics in the U.S. show that fresh cycles in 2007 had the following results:

  • 48% of cycles resulted in live births for women less than 35 years old
  • 41% of cycles resulted in live births for women 35 to 37 years old
  • 23% of cycles resulted in live births for women 38 to 40 years old
  • 19%  of cycles resulted in live births for women greater than 40 years old

Of these cycles, 30% had twins, and almost 3% had triplets or more.  (https://www.sartcorsonline.com/rptCSR_PublicMultYear.aspx?ClinicPKID=0)  Clinics in India have not published their success rates.  There are estimated to be over 1000 IVF clinics in India, but no laws govern assisted reproductive technology (ART) and no watchdog has been authorized to police it. 

There are more than 1000 IVF clinics in India, but no laws govern assisted reproductive technology (ART), which includes surrogacy, and no watchdog has been authorized to police it.

“Most of the ART clinics in this country are not following these guidelines because they do not have any legal strength,” said R. S. Sharma, the deputy director-general in the division of reproductive health and nutrition at the Indian Council of Medical Research.

A Canadian couple discovered their twins were not biologically related to them when DNA testing was done upon their birth in India and these twins may spend the rest of their lives in an orphanage because the clinic’s records are unable to identify their biological parents.

3.  At face value, surrogacy in India appears to be a win-win situation.  The intended parents receive a longed for child while the poverty stricken surrogate earns ten times an average person’s yearly salary.  However on reflection it can be argued that surrogacy in India is no more than the exploitation of the world’s poorest women and that intended parents pay a price that is a fraction of the price they would pay closer to home for surrogacy.  Surrogacy in America has had 30 years to develop and settle on the guidelines that govern the field.  Typical to most USA surrogacy programs and upheld by reputable IVF clinics is the following guidelines:

a.                          Surrogate must be between the ages of 21 and 42 years old.

b.                          Surrogate must have delivered at least one child herself (reputable agencies will also require that she has raised a child or is presently raising the child)

c.                          Surrogate cannot be receiving any welfare payments

d.                          Surrogate is entitled to independent legal counsel

e.                          Surrogate undergoes psychological screening (reputable agencies will screen the surrogate and her husband).

The 50 pregnant women at the clinic are mainly of lower caste and from impoverished nearby villages. The pay they can hope to receive following a birth is equivalent to over 10 years’ salary for rural Indians.

 (http://www.timesonline.co.uk/tol/news/world/asia/article7113463.ece) It appears that the majority of surrogates recruited in India would be ineligable to participate in surrogacy in the US.

4. In the USA it is unusual for a surrogate’s husband to approach a surrogacy agency and such solicitation would raise red flags for a counselor evaluating the case.  In India many husbands actively work to convince their wives to participate in surrogacy because of the financial benefits to the family.

They don’t want to appear ungrateful, but some surrogate mothers admit that they would not take the risk if they had a choice. “My husband took almost two months to convince me to do it,” says Anandi, a 39-year-old about to give birth for an American couple. “He said, ‘Do it for your children.’ But I have very young children and I was worried about leaving them.

“I will feel sad when I give away the child. I don’t know if I will be allowed to have contact with it. My children want me to give the baby away; they don’t want it at home. Nobody else knows about this. The village people would say bad things. I’ve just said that I’ve gone away for work, and I haven’t even told many of my relatives, only a few. They wouldn’t understand.”

Anandi had just moved from one of two “confinement” homes, where surrogate mothers live for the duration of their pregnancies. They may leave the gated premises only for hospital check-ups, and their husbands and children are allowed to visit on Sundays.  

If the first surrogacy is successful, Sumita would consider another. But 10 minutes later, it is time for Janisha to leave. In dread of another separation, she wails and grips Sumita’s bedcovers, before tearing away and running round in heartbreaking distress. Her anguish shatters any illusion that to be a surrogate mother is simply a way to make easy money.       

 ( http://www.timesonline.co.uk/tol/news/world/asia/article7113463.ece)

5.  It should always be remembered that surrogate mothers are first and foremost mothers to their own children.  Surrogate mothers in India must leave home for the duration of the pregnancy and live in a hostel run by the surrogacy agency.  The reasons given by Indian run surrogacy agencies are: 

a)      Poor obstetrician/pregnancy care in the village the surrogate lives in

b)      Poor living conditions

c)      Agency is unsure if the surrogate mother will have access to fresh fruit and vegetables during the pregnancy

d)      Agency not comfortable with the living conditions of the pregnant surrogate mother

e)      Problems with other village residents with regards to disapproving of a surrogacy pregnancy

f)       Inability to remain in contact with the surrogate during the pregnancy due to no or poor means of communication.

g)      Uncertainty of being notified when the birth occurs or if a birth is imminent.

h)      No place for the Intended Parents to stay for the birth and after the birth

i)       No neonatal intensive care facility close by for the baby after the birth

However, all these reasons concern the newborn baby and the Intended Parents. There is no good reason for the surrogate mother to have to abandon her family and move far away from her family for almost 9 months.  This relationship is clearly inequitable.  There appears to be no balance between a surrogate mother as a mother and a surrogate mother helping another couple.  Why not allow the surrogate mother to see her children every day or whenever they can make the journey to see her?  Why not allow the surrogate mother to have her children live with her?  Why does the agency simply advertise in neighborhoods that are safe and middle class so the surrogate can live at home?  The answer to the latter question may well be that to pursue surrogate mothers who from middle class families would result in surrogacy arrangements being of comparable costs as surrogacy costs in the United States. 

This will often involve these women cutting themselves off from their families, including their own children, for the period they are gestating the child. They will take on the risks of childbirth for a child they will never know. If the pregnancy does not go to full term, or the child does not live, they are unlikely to be paid. Some will inevitably suffer psychologically from giving birth to a child from whom they will be immediately parted. The whole process is likely to be very alien to their culture.

It is arguable that their human dignity and right to bodily integrity is infringed, and the rights of their own children to the society of their mother may be compromised.  http://www.irishtimes.com/newspaper/ireland/2010/0419/1224268626911.html

6.  The rapidly growing but unregulated field of surrogacy in India has led to calls for India to introduce tight laws on surrogacy to protect both the Intended parents and the surrogate mother.  New legislation has been drafted, detailing the obligations and rights of all parties, but it has yet to be enacted.  According to Priya Hingorani, a prominent Delhi lawyer and member of an expert panel drafting the bill, tight regulations must be enforced to offer the surrogate mother a comprehensive package of remuneration and medical and psychological care. “When I look at the poverty, and the genuine need of the couple who don’t have children, I think that surrogacy is all right,” she says. “But when I see the other side of things, when people are exploited, then there is the need for very strong regulation. Surrogacy has become more of a commercial racket as it becomes more prevalent. We are seeing a new trend of fertility and wombs on sale.”  The legal status of surrogacy is unsettled at this time in India.

A bill to govern assisted reproductive technology and surrogacy has been drafted that makes it much harder, and maybe impossible, for international couples to hire Indian surrogates.  Under the proposed law, a foreign couple wanting to enter an agreement with an Indian surrogate would need a written guarantee of citizenship for the child from their government.  There is also concern that the proposed Indian legislation would also prohibit gay couples from hiring surrogates.

7.   For prospective parent participating in surrogacy in India the entire process is also fraught with difficulties. Thousands of miles from home, the language barriers, culture shock and basic standards of a Third World clinic, where two women are often in the operating theatre at the same time, can make for a frightening experience.  Couples pursuing surrogacy in the USA are often concerned about the medical qualification of the obstetrician taking care of their pregnant surrogate mother and their unborn child.  They frequently ask questions about which perinatologist they should go to for the nuchal fold test, the cvs testing or the amniocentsis.  Couples request second opinions, want to know about the hospital their baby will be born at, what doctor will their baby see between birth and their return home.  What options are there in India? 

8.  For some countries such as the USA, a couple can complete their paperwork within 10 days of birth and return home with their newborn baby.  However for other countries the stay is indeterminable.  Many British couple need to spend 2-3 months in India before returning home. 

9.  Finalization of parental rights for most countries involves proving a genetic link between the baby and the parent.  For couples where only one parent is biologically related to the child there is an additional risk of doing surrogachy in India.  If a parent dies before the birth of their child, there will be no way of proving the child is genetically related to the parent and therefore impossible to obtain citizenship for that child.  These children must remain in India and potentially live their lives in an orphanage.

Wills, Trusts and Embryos

By Molly O’Brien:

Molly is a 3rd year law student at Whittier Law School and wrote this paper for her class in wills and trusts.  We thought this information may be useful and interesting to our couples. 

 

GOAL: To determine whether your client has stored genetic material and whether they want any children conceived from this material, how they want the material disposed of, and whether any children conceived from the stored material should inherit. 

SCIENTIFIC BACKGROUND:

Gametes – The individual components from a man and a woman that make an embryo.  The egg, or oocyte, is the female component and the sperm, or spermatozoon is the male component.  These are mature reproductive cells, and when combined develop into a new individual.[1]

Embryos – An embryo is the developing human organism from about 14 days post fertilization (the combining of the gametes) until the period when the organs and organ system begins to develop which is approximately at the end of the second month of gestation.[2]

In-Vitro Fertilization – (IVF) means “in glass fertilization”. It is a procedure by which the gametes of the intended parents are joined outside of the body to create an embryo, which is then implanted into the intended mother for a higher chance of successful pregnancy.[3] 

Gamete Storage Facility – Using cryopreservation, embryos, or individual gametes, can be stored.  The embryos are stored in liquid nitrogen inside “straws” that are placed inside tanks.[4]

            Many people who create frozen embryos for assisted reproduction have remaining frozen embryos.[5]  Couples have options of what to do with those embryos;

1. Donate the embryos either to another infertile couple or to research.

2. Humanely discard; either defrost the embryos or implant the embryos into the intended mother at an infertile time.

3. Don’t do anything.[6]

Summary Of The Problem That Could Arise

            If you have a client who has undergone IVF there is a strong likelihood that they will have frozen embryos remaining.  During your client intake you should inquire if they have undergone any procedure, if they have any embryos in storage or gametes in storage.  If your client has any of these, then it is important to account for those embryos in the will or trust.  The cost of storage of the embryos may be a debt that needs to be anticipated or the disposition of the embryos after the death of one or both of the progenitors will need to be arranged.

I. How to write frozen embryos into your client’s will or trust.

            First, it is important to point out that your client may have already signed a form with their IVF doctor regarding the disposition of their remaining frozen embryos.  If they have signed a form with the doctor’s office, ask what year they signed it.  As of January 2004, California enacted a new code that states that a doctor providing a patient with fertility treatment must supply their patients with “timely, relevant, and appropriate information” to allow patients to make their own informed decisions regarding what to do with their remaining frozen embryos.[7]  Therefore, your client may already have a plan in place with the doctor’s office.  What they state in the will or trust and what they have told the doctors office should be the same instructions.

            Some doctor’s offices will also have patients sign release forms that state that if the patient does not pay the storage fees or otherwise abandons the embryos then the doctor’s office can destroy the embryos.  However, many doctors do not actually destroy the embryos because of both the moral dilemma and the fear that the patient may come back and try to reclaim their embryos.[8]  Therefore, your client and or their estate may be responsible for the unpaid storage fees and the embryos may still be around and need to be dealt with since they would be considered property of the estate.

 Suggested Language

 “Children: All references to ‘my children’ in this trust shall refer only to any child born to or adopted by my husband and I after the date of this trust agreement. 

‘Any child born’ to my husband and I shall include posthumously conceived children by me by means of assisted reproduction whereby I provided the egg and my husband provided the sperm as long as

(1) such child is born during my husband’s lifetime

(2) my husband has acted as such child’s legal guardian unless he was unable to do so as a result of his death or disability.

On the written declaration of any descendant of me and my husband and subject to any restrictions contained in such written declaration, a posthumously conceived child by means of assisted reproduction whereby such descendant provided either the sperm or the egg shall be considered a child of such descendant and a descendant of the descendant’s ancestors.”[9]

            This example is written as though the Settlor was the wife.  However, using interchangeable words such as “spouse” can make this work for a husband, as well.  Also, changing the word “trust” to “will” would make this operational in a will. 

            As a side note, a husband can also have the means of using remaining frozen embryos when the wife has passed away, even though he lacks a uterus.  The husband could use a surrogate mother to carry the child.  If the wife is your client and does not want the embryos to be used, the will or trust documents should explicitly state that the embryos should not be gestated.  If this is the case, have your client dictate the manner in which they wish to dispose of the embryos.

Is An Embryo A Person Or Property?

            A moral dilemma exists in defining the legal status of the embryo, as well.  Is the embryo a person, or is the embryo property?  The several states are split on this, and the Supreme Court has not decided a case regading the legal status of an embryo.

            In 1992, the lower court in Davis v. Davis[10] stated that life begins at conception and that embryos are people, not property.[11]  In that case, Mr. and Mrs. Davis were a divorced couple and the wife wanted to use their frozen embryos to achieve a pregnancy after their divorce.  The Court of Appeal reversed the Supreme Court’s decision and while they did not state that the embryos were property per se, the Court of Appeal held that both Mr. and Mrs. Davis had an interest in the embryos.[12]  Then the Supreme Court reversed the Court of Appeal decision ruling that the embryo has a status of something in between property and life.

            Conversely, York v. Jones[13] held that an embryo is more like property than a person.[14]  In that case, the York’s had frozen embryos in New Jersey and wished to transport the embryos to California.[15]  The clinic in New Jersey refused.[16]  The York’s had signed paperwork with that clinic where the paperwork referred to the embryos specifically as the property of the York’s.[17]  The court found the relationship between the York’s and the clinic to be that of a bailor/bailee and granted the York’s immediate possession of their “property”[18].

            With regards to embryo adoption[19], most states view the embryos to be adopted as a property interest that is going to be transferred.[20]  If embryos were to be legally viewed as property, then the controlling law would be that of progenitor’s rights and contract law.[21]  Scientifically speaking, an embryo does not have a differentiated nervous system and is not sustainable life on it’s own.[22]  Furthermore, in 2002, the FDA officially defined a human embryo as biological tissue.[23]

            There is a trend toward seeing the embryo as tissue with the potential for human life, which is essentially what the court held in Davis.[24]  The court went on to further state that when resolving disputes involving the disposition of embryos the court should first look to the preference of the progenitors.[25]  If there is a dispute between the progenitors, as there was in Davis, and there is a release form or other written documentation, the presumptive standard is to follow that prior agreement.[26]  If there is no prior agreement, the interests of the parties should be weighed.[27] 

II. What happens if you have frozen embryos, but you do not include them in your estate plans.

            If your client has frozen embryos and they do not dispose of them in their estate, the alternate is that the clients family – aka the brothers and sisters, aunts and uncles, etc of these embryos – will have to decide what to do with their would be siblings, nieces, nephews, or grandchildren.  This is an extremely unfair result so encouraging your client to state their wishes is prudent.  If there were embryos not accounted for, the embryos would simply pass through intestate succession.

            Also, there are storage fees that need to be paid.  The storage facility could be considered a creditor to the estate so providing monies for continued storage in the estate can be helpful.  

PREVENTION

Simply adding a question to your client intake form can help eliminate this possibility.

“Do you or your spouse have any frozen gametes or frozen embryos in storage”

If yes, then inquire about their plans and ideas for disposition. 

III. Can a surviving spouse use embryos after the death of the other spouse?

            When a child is born after the death of one or both of the progenitors, the child is deemed to be a posthumous child.  Whether a posthumous child can take under a will is a matter that varies form state to state.

Statutory Framework

            The Restatement of Property states that a child who is conceived and born AFTER the death cannot be considered an heir.[28]  However, if the child is born of genetic material by assisted reproduction, there is a trend toward allowing the child to be an heir as long as the child is born within a reasonable time after the decedents death and the decedent would have wanted the child to inherit.[29] 

            The Uniform Parentage Act (UPA) states that a parent child relationship exists if the natural mother and natural father were married to one another and the child is born within 300 days of the death of one or both of the natural parents.[30] However, the UPA also states that if a husband dies prior to frozen sperm being used for conception, the deceased father would not be the parent of any child conceived unless there was written documentation stating his intent prior to his death.[31]  Therefore, if you have a client who is living in a state that has adopted these provisions of the UPA then have them clearly state their intent in writing once they freeze their semen or their embryos.

            As of 2006, seven states that have adopted the UPA have allowed a posthumously conceived child to inherit if there was consent in the record.[32]  These states are Colorado, Delaware, North Dakota, Texas, Utah, Washington and Wyoming.

            The Uniform Probate Code originally stated that a child that was conceived prior to death, but delivered after death that child will inherit as though they had been born in the lifetime of the decedent.[33]  However, as part of the 1990 revision to the UPC, section 2-108 now states that a child “in gestation at a particular time is treated as living at that time if the [child] lives 120 hours or more after birth”.[34]

State Law

            Some states, such as Massachusetts and New Jersey, have recognized the rights of posthumously conceived children to inherit.[35]  On the other hand, other states, such as Florida and California, do not always recognize this right.[36]  However, it is important to note that in the California case that did not allow the inheritance, the natural parents were not married.  Furthermore, CPC §6407 states that a child conceived of the decedent prior to the decedents death can inherit.[37]  However, CPC § 249.5 states that a child conceived after the death of decedent shall be deemed to have been born during the decedent’s lifetime and after the execution of all of the decedents testamentary instruments (meaning they can inherit) if there is clear and convincing evidence that certain conditions are satisfied.[38]  These conditions are the specification in the will must be attested by at least one competent witness, the specification may only be revoked or amended by a signed writing and witnessed, and the person who can use the genetic material must be the spouse or domestic partner of decedent or some other person named in the specification.[39]  Moreover, there are additional sections of the CPC that if the decedent does not provide for an omitted child born or adopted after the execution of the decedents testamentary instruments, the omitted child will receive a share equal to that which they would have received had there not been a testamentary instrument.[40]  In other words, the omitted child would take the intestate share.

            In 2004, California Assembly member Tom Harman launched A.B. 1910, which granted inheritance rights to any child conceived within two years of the death of a parent.[41] 

            Ultimately, the best solution is to make it clear what the intent of the testator is.  Are they comfortable with the possibility of having a posthumous child?  Consult the most recent laws from the state you are working in. 

            As a side note, with same sex parenting as a lawyer you may run into problems because the parents may not be married.  For example, some states allow two dads to be on a birth certificate, but that does not automatically mean that the child will have inheritance rights.  Again, consult the local laws and write it clearly into the will.

IV. Postmortem Reproduction

            Another dilemma for your client may arise if they die and their surviving spouse wishes to extract their gametes for the purpose of postmortem reproduction.  The first notable case involving postmortem reproduction was an English case[42], where a young wife’s husband developed meningitis in 1995 and suddenly died.[43]  The wife, Diane Blood, had her husband sperm extracted immediately before death, and then again immediately after.[44]  The extraction of the sperm was not where Mrs. Blood ran into legal problems, her problems arose when she tried to use the semen.[45]  The court in England ruled that she was able to use the semen for an insemination, but she could not do so in the country.[46]  Mrs. Blood was inseminated in Belgium and has two children as a result.[47]

            The first case in America where a woman became pregnant after using the sperm of her deceased husband was Vernoff v. Astrue.[48]  Gaby Vernoff had her husband’s semen extracted 30 hours after he passed and the semen remained in frozen storage for 15 months.  Mrs. Vernoff then conceived after doing an artificial insemination procedure using ICSI[49] and a daughter was born.[50]  After birth, Mrs. Vernoff filed a lawsuit to have her daughter be eligible for “survivor benefits” because state law presumed that she was not her genetic father’s child due to being conceived postmortem. 

V. Conclusion

            In conclusion, it is best to ask your client thorough questions and specifically provide for all scenarios in their testamentary instruments.  Even if you couple thinks they do not have remaining genetic material, they may and they should double check with all medical facilities in order to avoid having their family inherit that genetic material. 

BIBLIOGRAPHY

CASE LAW

Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992).

Hecht v. Superior Court, 16 Cal.Rptr 2d 275 (2d Dist. 1993). 

In Re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. 2000). 

Regina v. Human Fertilisation and Embryology Authority Fam. 151 (ct. of appeal 1999).

Stephen v. Commissioner of Social Security, 386 F.Supp 2d 1257 (M.D. Fla. 2005).

Woodward v. Commissioner of Social Security, 760 N.E. 2d 257 (Mass. 2002).  

York v. Jones, 717 F.Supp 421 (4th Cir. 1989). 

STATUTORY LAW

UPA § 204 (2002).

UPA § 707 (2002).

CPC §6407 (2009).

CPC §249.5 (2009).

CPC §21620 (2009).

UPC §2-108 (1969).

UPC §2-108 (1990).

CA Health and Safety Code §125315 (West 2004).

A.B. 1910 (2004).

LAW REVIEW ARTICLES

Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses 40 Wake Forest L. Rev. 159 (2005).

Kate Lyon, Student Author, Babies on Ice: the Legal Status of Frozen Embryos Involved in Custody Disputes During Divorce.

SECONDARY SOURCES

17 A.L.R. 6th 593 (2006).

BOOKS

Judith F. Daar, Reproductive Technologies and the Law (Lexis 2006).

 

Liza Mundy, Everything Conceivable: How Assisted Reproduction is Changing Our World (Anchor Books 2008). 

INTERNET RESOURCES

Jerry Cooper, Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, (Oct. 9, 2009) (Last Accessed April 25, 2010).

http://www.cryobank.com/Services/Private-Storage-Options/Embryo-Storage/

 

Karen Synesiou, An Open Discussion – The Dilemma of Remaining Frozen Embryos, http://www.creatingfamilies.com/IP/IP_Info.aspx?Type=174

 


[1] Judith F. Daar, Reproductive Technologies and the Law, 8 (Lexis 2006).

[2] Id. at 7.

[3] Id. at 35.

[4] See http://www.cryobank.com/Services/Private-Storage-Options/Embryo-Storage/ (Last accessed April 25, 2010).

[5] Kate Lyon, Student Author, Babies on Ice: the Legal Status of Frozen Embryos Involved in Custody Disputes During Divorce, 21 Whittier L. Rev. 695, 700 (2000).

[6] Karen Synesiou, An Open Discussion – The Dilemma of Remaining Frozen Embryos, http://www.creatingfamilies.com/IP/IP_Info.aspx?Type=174 (Las Accessed April 25, 2010).

[7] CA Health and Safety Code §125315 (West 2004).

[8] Liza Mundy, Everything Conceivable: How Assisted Reproduction is Changing Our World, 304 (Anchor Books 2008).

[9] Jerry Cooper, Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, (Oct. 9, 2009) (Last Accessed April 25, 2010).

[10] 842 S.W. 2d 588 (Tenn. 1992).

[11] Id.

[12] Id.

[13] 717 F.Supp 421 (4th Cir. 1989).

[14] Lyon at 706. 

[15] York at 423.

[16] Id. at 424.

[17] Id.

[18] Id.

[19] Embryo adoption is when a couple who has remaining embryos “adopts” the embryos out to another infertile couple for that new couple’s use.  This is similar to the embryo donation mentioned supra.

[20] Mundy at 298.

[21] Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses 40 Wake Forest L. Rev. 159 (2005). 

[22] Lyon at 721. 

[23] Mundy at 298.

[24] Davis at 597. 

[25] Id.

[26] Id.

[27] Id.

[28] 17 A.L.R. 6th 593 (2006).

[29] Id.

[30] UPA § 204 (2002).

[31] UPA § 707 (2002).

[32] Jerry Cooper, Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, (Oct. 9, 2009) (Last Accessed April 25, 2010).

[33] UPC §2-108 (1969).

[34] UPC §2-108 (1990).

[35] Woodward v. Commissioner of Social Security, 760 N.E. 2d 257 (Mass. 2002); In Re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. 2000).

[36] Stephen v. Commissioner of Social Security, 386 F.Supp 2d 1257 (M.D. Fla. 2005); Hecht v. Superior Court, 16 Cal.Rptr 2d 275 (2d Dist. 1993). 

[37] CPC §6407 (2009).

[38] CPC §249.5 (2009).

[39] Id.

[40] CPC §21620 (2009).

[41] A.B. 1910 (2004).

[42] Regina v. Human Fertilisation and Embryology Authority Fam. 151 (ct. of appeal 1999).

[43] Judith F. Daar, Reproductive Technologies and the Law, 562 (Lexis 2006).

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.