With advances in medical technology and sophisticated storage techniques, genetic material (sperm, eggs, embryos, etc.) can be preserved for increasing lengths of time. What happens if a couple who stored genetic material gets divorced or one of the parties dies?
By Sharon L. Klein, Family Wealth Strategist, Trusts & Estates Attorney
When couples trying to conceive in happier times have stored genetic material, and they subsequently divorce, does one party have the right to use the stored genetic material? In the divorce context, different states have taken four different approaches: Contractual, Contemporaneous Mutual Consent, Balancing, and Hybrid.
Who Owns Stored Genetic Material in the Event of Divorce?
1. Contractual Approach
When individuals preserve genetic material, they often enter into an agreement, with the fertility clinic or otherwise, regarding the disposition of that material in the event of certain contingencies, including death or divorce. The contractual approach honors these agreements as an expression of the parties’ mutual intent. California and New York, for example, follow the contractual approach.
In California, In the re Marriage of Stephen E. Findley and Mimi C. Lee, a husband and wife made the decision to use in vitro fertilization (IVF) and signed a consent agreement, as required by California law. The consent agreement provided that the embryos would be destroyed if the couple were to divorce. The wife challenged the validity of the consent agreement upon filing divorce. Using these embryos was likely her last chance to be a biological mother. The California Superior Court ruled that the consent agreement was a valid and enforceable contract. According to the court, the husband and wife voluntarily and intelligently entered into the consent agreement, and the spouses agreed between themselves and the fertility center to discard the embryos if they divorced while the embryos were in the custody of the fertility center.
In New York in Finkelstein v. Finkelstein, a husband and wife signed an agreement with a fertility clinic that permitted either party to withdraw consent to participate in the IVF process. Upon filing for divorce, the husband requested sole custody of the one remaining cryopreserved embryo and revoked his consent to use any of his genetic material. The Supreme Court referred the question of equitable distribution of the embryo to a special referee who narrowly read the consent provisions of the agreement to find the husband could only withdraw consent to the terms of storage of the embryos, but did not have a right to revoke consent to the wife’s use of the embryo. The special referee awarded the embryo to the wife, concluding that the balance of equities favored the wife because this represented her last chance to become a biological parent. The Supreme Court confirmed the special referee’s report and the husband appealed. The New York Supreme Court, Appellate Division, reversed, finding the special referee’s interpretation of the consent agreement contrary to its plain meaning. The Appellate Division found the agreement permitted either party to withdraw consent to participation in the entire IVF process, and that the husband’s broadly worded revocation of consent was effective to revoke his consent to the continuation of the IVF process.
2. Contemporaneous Mutual Consent Approach
The contemporaneous mutual consent disallows disposition of the frozen embryos or other material unless the couple who created the material mutually consent to a specific disposition at the time the decision is being made. Due to the highly emotional nature of such a choice, subsequent changes in decision outweigh any prior consent.
3. Balancing Approach
When ruling on a suit challenging the disposition of genetic material, some courts adopt the balancing approach. Under this approach, the court evaluates the interests of each party in the genetic material – generally, one’s right to procreate, particularly if this is the only means left to have a genetic child, versus another’s right to avoid procreation. Alternatively, one party’s interest in avoiding procreation may prevail.
In J.B. v. M.B., the Supreme Court of New Jersey recognized that persuasive reasons exist for enforcing pre-embryo disposition agreements, but determined that the better rule, which the court adopted, is to enforce agreements entered into at the time the in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored pre-embryos. In this case, the court determined that the parties never entered into a binding contract providing for the disposition of the pre-embryos and it evaluated the interest of both parties, noting that ordinarily the party choosing not to become a biological parent will prevail. Here, the court held that seven remaining pre-embryos should be destroyed after considering that the father was capable of fathering additional children.
4. Hybrid Approach
Some courts have taken a hybrid approach, combining the contractual and balancing approaches: first, by honoring any advance agreement between the parties regarding the disposition of pre-embryos and, alternatively, in the absence of an agreement, by weighing the parties’ relative interests in using or not using the pre-embryos.
As the use of artificial reproductive techniques continues to grow, planning around genetic material takes on increased significance. When drafting marital agreements, it may be advisable to include provisions detailing the disposition of any genetic material arising during the marriage as marital property, and provisions to mandate the resolutions of dispute regarding disposition of genetic material – mediation, arbitration, etc. – if the genetic material is deemed not to be property that is subject to division. In Davis v Davis, the court concluded that frozen embryos are special property, occupying an interim category that entitles them to special respect because of the potential for human life. At a minimum, it would seem prudent to include statements of each party’s intents and wishes for the disposition of the genetic material. Whatever outcome the parties agree to should be mirrored in any contract(s) signed with fertility clinics, genetic material storage facilities and the like.
Indeed, given the variance in state laws and the fact that this area is in flux due to rapidly advancing technologies, establishing the donor’s intent is critical. In the Californian case of Estate of Kievernagel, the court used the intent of the donor to determine the disposition of his stored sperm after his death. His widow wanted to use his frozen sperm to attempt to conceive a child even though he had signed an agreement with the fertility center directing that the frozen sperm be discarded upon his death. The court found by a preponderance of evidence that the intent of the donor must control when determining the disposition of gametic material, to which no other party has contributed and thus another party’s right to procreational autonomy is not implicated.
Are Children Born After the Death of Their Parent(s) Entitled to Inherit?
With sophisticated storage techniques for genetic material and advances in medical technology, a child can be conceived after the death of one or both of the child’s genetic parents. As state legislatures struggle to keep pace with an area in which technology has fast outpaced the law, we are confronted the question: How should posthumously conceived children (PCC) be treated for inheritance, intestacy, and other purposes?
Intestacy statutes drafted long before the new technologies could even have been contemplated are often unclear in this context. At its heart, the fundamental issue involves striking a balance between recognizing the interests of the children born of these new technologies and the interests of existing beneficiaries in certainty and finality. State intestacy statutes drafted long before posthumous conception was even contemplated are by definition ambiguous because they were not designed to accommodate the situations with which we are now confronted. Indeed, some courts found PCC entitled to inherit under the state intestacy laws at issue, while others have reached the opposite conclusion.
Scant Case Law on Inheritance Rights
As courts have struggled to interpret intestacy statutes drafted before the new technologies could even have been envisioned, a New York Surrogate faced a similar issue in interpreting the provisions of a trust document drafted well before the grantor could have formed an intent regarding treatment of PCC. In re Martin B. is apparently the only case thus far decided in the U.S. directly concerning the inheritance rights of PCC.
In In re Martin B., two PCC were born to the wife of a decedent who had stored his sperm before cancer treatment, which was unsuccessful. The father of the decedent had created trusts for the benefit of classes that included the decedent’s “issue” and “descendants.” The question for determination was whether the decedent’s PCC qualified as members of these classes. The surrogate held that the controlling factor was the grantor’s intent as gleaned from a reading of the trust agreements. Ironically, since the trusts were created in 1969, the surrogate pointed out that the grantor could not have contemplated that his issue could include PCC. Nevertheless, despite absence of specific intent, she found that the grantor’s dispositive scheme was to benefit his sons and their families equally. She referred to Restatement (Third) of Property §14.8 that a child of assisted reproduction should be treated for class-gift purposes as a child of the person who consented to be a parent, but was prevented from doing so by death. She determined that a “sympathetic reading” of the instruments warranted the conclusion that the grantor intended all members of his bloodline to receive their share.
According to the surrogate, “Simply put, where a governing instrument is silent, children born of this new biotechnology with the consent of their parent are entitled to the same rights for all purposes as those of a natural child.” The proceeding before the surrogate was, however, an uncontested application by trustees seeking the court’s advice and the surviving spouse had agreed to destroy all remaining stored sperm, thereby closing the class of children. Accordingly, the holding of the case is probably limited to its specific facts, and the surrogate in fact called for comprehensive legislation to resolve the issues raised by advances in biotechnology.
State Legislatures Respond
Because state intestacy statutes were not designed to deal with the new technologies, state legislatures have begun to respond with legislation that specifically defines under what circumstances PCC will be accorded inheritance and other rights. To date, 26 states have enacted statutes dealing with those conceived posthumously and four states have introduced legislation.
If an individual who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm or embryos, the deceased individual is not a parent of a 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.
In an apparent attempt to limit the benefits of the statute to surviving spouses, the other four states that have statutes based on the 2002 UPA refer to a “spouse,” instead of an “individual:”
If a spouse dies before placement of eggs, sperm or embryos, the deceased spouse is not a parent of a 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.
Originally, the UPA did not include a time period within which a child was required to be conceived or born after death. The 2017 version of the UPA regarding PCC, which has been adopted in Rhode Island, Vermont and Washington State, adds a time frame. A deceased individual will be considered a parent of a PCC if that individual gave written consent to assisted reproduction by a woman who agreed to give birth if (1) either (A) the individual gave written consent to posthumous reproduction or (B) the individual’s intent to be a parent by posthumous reproduction is established by clear and convincing evidence and either (2)(A) the embryo is in utero within 36 months; or 2(B) the child is born within 45 months of that individual’s death. Washington, which adopted the 2017 UPA, enacted this provision exactly. Rhode Island and Vermont changed the evidentiary standard from clear and convincing evidence to a preponderance of the evidence.
Some state statutes have always imposed time limits within which a child must be conceived or born. Those time limits typically range from requiring birth within one to four years after death. The Uniform Probate Code (UPC), which has been adopted in Colorado and North Dakota regarding PCC, treats a child as in gestation at an individual’s death if the child is in utero within 36 months or born with 45 months of death. As noted in the UPC comment, a time frame after death is designed to allow a spouse or partner to grieve, decide whether to proceed with assisted reproduction, and provide a reasonable allowance for unsuccessful attempts to achieve pregnancy. It is part of the overall attempt to strike a balance between the interests of PCC and the interests of current beneficiaries in finality.
The Bottom Line: Collaboration Early and Often is Key
As technology continues to develop and more people store genetic material, it will become increasingly important to consider implications if a genetic parent either gets divorced or dies. Both scenarios merit consideration in order to effectively represent a client’s wishes and underscore how important it is for matrimonial, trusts & estates, accounting, and investment professionals to partner throughout the whole divorce process to integrate considerations that cross disciplines.
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 See, for example, Kass v. Kass, 91 N.Y. 2d 554, 696 N.E.2d 174 (1998)
 In re the Marriage of Stephen E. Findley and Mimi C. Lee, Case No. FDI-13-780539, www.sfsuperiorcourt.org/sites/default/files/pdfs/FINDLEY_Statement_Of_Decision%20Rev_1.pdf
 Cal. Health & Safety Code § 125315
 Finkelstein v. Finkelstein, 162 A.D.3d 401, 79 N.Y.S.3d 17 (N.Y. App. Div. 2018), leave to appeal denied, 32 N.Y.3d 1140, 116 N.E.3d 661 (2019)
 See, for example, In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003)
 See, for example, Reber v. Reiss, 2012 PA Super 86, 42 A.3d 1131 (2012)
 See, for example, Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992)
 J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001)
 See, for example Szafranksi v. Dunston, 2015 IL. App (1st) 122975; In re Marriage of Rooks, 2016 COA 153 (2016), cert. granted
 Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992)
 Estate of Kievernagel, 166 Cal. App, 4th 1024, 83 Cal. Rptr. 3d 311 (2008)
 PCC eligible to inherit under state intestacy statute: In re Estate of Kolacy, 332 N.J. Super. 593, 753 A.2d 1257 (Ch. Div. 2000) (New Jersey); Woodward v. Comm’r of Soc. Sec., 760 N.E.2d 257 (2002) (Massachusetts, under certain circumstances). PCC not eligible to inherit under state intestacy statute: Stephen v. Comm’r of Soc. Sec., 386 F. Supp. 2d 1257 (M.D. Fla. 2005) (Florida); Khabbaz v. Comm’r, Soc. Sec. Admin., 155 N.H. 798, 930 A.2d 1180 (2007) (New Hampshire); Finley v. Astrue, 372 Ark. 103, 270 S.W.3d 849 (2008) (Arkansas); Vernoff v. Astrue, 568 F.3d 1102 (9th Cir 2009) (California has a PCC statute, but PCC did not satisfy PCC statute because decedent did not consent to posthumous reproduction and PCC not born within statutory timeframe. PCC was also not eligible to inherit under California intestacy laws); In re Certified Question from U.S. Dist. Court for W. Michigan, 493 Mich. 70, 825 N.W.2d 566 (2012) (Michigan); Amen v. Astrue, 284 Neb. 691, 822 N.W.2d 419 (2012), dismissed by 2013 U.S. Dist. LEXIS 9603 (Neb. 2013) (Nebraska); Bosco v. Astrue, 2013 U.S. Dist. LEXIS 93693 (DC N.Y., 2013) (New York); Capato ex rel. B.N.C. v. Comm’r Soc. Sec., 532 F. App’x. 251 (3d Cir. 2013) (Florida, remanded determination after United States Supreme Court ruling).
 In re Martin B., 17 Misc. 3d 198, 841 N.Y.S.2d 207 (Sur. 2007)
 Restatement (Third) of Property Section 14.8 has been subsequently updated.
 Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Illinois, Iowa, Louisiana, Maine, Maryland, Minnesota, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Texas, Utah, Vermont, Virginia, Washington, and Wyoming. It is extremely unlikely that North Carolina’s statute applies to PCC, although it can literally be read to do so.
 2020 Kentucky House Bill No. 480, 2019 Massachusetts House Bill No. 4965, 2019 Michigan House Bill No. 5321, 2019 Pennsylvania House Bill No. 243
 Oklahoma has adopted the UPA, but without Article 7, the article that addresses a child of assisted reproduction.
 Delaware, Maine, New Mexico, North Dakota, Vermont, Washington and Wyoming.
 Uniform Parentage Act (2000) Section 707 (amended 2002)
 Alabama, Colorado, Texas and Utah.
 R.I. Gen. Laws Ann. § 15-8.1-707
 Vt. Stat. Ann. Tit. 15C, § 707
 Wash. Rev. Code Ann. § 26.26A.635
 Uniform Parent Act (2017) Section 708
 For example, in New York, for the genetic child must be in utero with 24 months or born within 33 months of the genetic parent’s death. N.Y. EPTL § 4-1.3. In California, the child must be in utero within two years of death. Cal. Prob. Code § 249.5-6
 Uniform Probate Code (2019) Section 2-104(b)
 Comment to Uniform Probate Code (2019) Section 2-120 (k)
 Comment j to Section 15.1 of Restatement (Third) of Property: Wills and Other Donative Transfers, provides that a child produced posthumously by assisted reproduction is treated as in being at the decedent’s death, if the child was born within a reasonable time after death. The UPC timeframe of a child in utero within 36 months or born within 45 months is referred to as appropriate for a court to adopt as reasonable.
Sharon L. Klein is president of Family Wealth, Eastern U.S. Region, for Wilmington Trust, N.A. and head of its National Matrimonial/Divorce Advisory Practice. A Fellow of the American College of Trusts & Estates Counsel, she also chairs the Domestic Relations Committee of Trusts & Estates magazine, is on Family Lawyer Magazine’s Advisory Board, and is a member of the New York City Bar Association’s Matrimonial Committee. Beginning her career as a trusts & estates attorney, Sharon has over 25 years’ experience in the wealth advisory arena and is a nationally recognized speaker and author. www.wilmingtontrust.com/divorce
This article, which includes developments through September 30, 2020, is for general information only and is not intended as an offer or solicitation for the sale of any financial product, service or other professional advice. Wilmington Trust does not provide tax, legal or accounting advice. Professional advice always requires consideration of individual circumstances. Wilmington Trust is a registered service mark used in connection with various fiduciary and non-fiduciary services offered by certain subsidiaries of M&T Bank Corporation. © 2020 M&T Bank Corporation and its subsidiaries. All Rights Reserved.
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