‘To my unborn child'

Posthumous conception and reproduction

As a result of advances in medical technology, such as freezing and storing embryos, it is possible for a child to be born and also conceived after a parent’s death, e.g. more commonly, through artificial insemination or in vitro fertilisation (‘IVF’) using frozen sperm or eggs extracted during the parent’s lifetime.

In our experience, people want to be able to control what happens to them (and sometimes their successors) after they die but this may be difficult to achieve in the context of posthumous reproduction. With medicine developing faster than the law, the legal system is struggling to keep up with the pace of change and this raises concerns about the implications for inheritance and succession following posthumous reproduction. There are, of course, also moral, ethical and religious considerations, to name only three.

The issues

In the UK, the law does not currently provide clear answers to questions such as whether a child born as a result of posthumous reproduction can inherit from the deceased parent’s estate and, if so, will they have the same rights as other children conceived before the parent’s death?

In the context of a growth in the number of probate and trust disputes, and with these issues in mind, we take a look at some of the measures adopted by other jurisdictions, in comparison with the UK, before providing some practical guidance.

Other jurisdictions

In some jurisdictions posthumous reproduction is expressly prohibited, e.g. under German law it is an offence to intentionally use a man’s sperm for artificial insemination after his death. On the other hand, others have adopted a more lenient approach such as Israel where the law permits (in certain circumstances) posthumous sperm retrieval at the request of a surviving female partner of the deceased.

The US has taken the lead in developing new technologies for posthumous reproduction and so the US courts have had the opportunity to consider the issues for some time. A number of cases concerning inheritance rights of posthumously conceived children have reached the US Supreme Court but, in the absence of federal legislation, the issues remained governed by state inheritance laws.

Consent is a common theme across the board and in many states posthumous reproduction is permitted only where the deceased has provided written consent for their genetic material to be used to conceive a child after their death (Delaware). Some states have also imposed further conditions relating to notice provisions and recording of the deceased’s consent (New York).

In certain states, there are time limits on when a posthumously conceived child can inherit from their deceased parent. Californian state law requires the child to be in utero (in the mother’s womb) within 2 years from the date of death and in Iowa the child must also be born within that 2 year period.

From a practical point of view, it seems sensible to impose a time limit of some sort although the above examples are perhaps overly harsh. Since the majority of cases involve death of a husband/wife/partner, there is arguably a need to incorporate a reasonable period of “mourning time” to allow the surviving partner to grieve before the ‘posthumous conception clock’ starts running.

The UK position

In the UK, children born after (but conceived before) the death of a parent are generally treated as a child of the deceased for the purposes of inheritance and succession. However, what is the position where a child is not conceived until after the date of death?

Under intestacy law, where the deceased dies without a Will, a child must be living at time of death or already in utero in order to inherit from the deceased parent’s estate. Posthumously conceived children may therefore be (albeit indirectly) excluded from the class eligible to inherit intestate.

Where the deceased has made express provision in their Will for children conceived after their death, such gifts may be invalid as there is no certainty of the interest vesting within the prescribed perpetuity period. Similarly, a trust set up for the sole benefit of potential children who have not been (and may not ever be) conceived at the date of death is unlikely to succeed but it may be possible to circumvent this by including other children already born within the class of beneficiaries.

Working with your clients

In the absence of relevant legislation, the current system provides limited protection for the inheritance rights of posthumously conceived children and the issues are determined on a case-by- case basis. Whilst the lack of certainty in the law means it is difficult to predict or control future outcomes, there are ways in which some of the potential issues may be avoided.

As advisers, we should have open, honest discussions with clients about whether they are considering (or have already undergone) procedures to freeze their eggs/sperm and, likewise, clients should be encouraged to be forthcoming in providing as much information as possible.

Clients should seek advice in relation to contracts with fertility clinics etc. and these should be checked with a fine-toothed comb to make sure they are watertight and cover all relevant matters, such as storage and access rights. If there are any loopholes, you should ensure clients are fully aware of the potential risks and consider whether it is necessary to draft additional, or amend existing, contractual agreements.

Other potential issues may be avoided by clear and thorough drafting of documents and estate planning. When drafting Wills and letters of wishes, consider including express provisions relating to consent for frozen genetic material to be used for the purposes of posthumous reproduction. Where a client wants to make provision for posthumously conceived children in their Will, this may be best achieved through a discretionary trust where the class of beneficiaries also includes other children who are already alive.

Meanwhile, the issues continue to evolve

Earlier this month, the media reported on a recent case in China where a child was born to a surrogate mother 4 years after the child’s parents died in a car crash, following implantation of a frozen embryo. The parents of the deceased couple fought a long legal battle for the right to use the embryos and, since surrogacy is illegal in China, had to travel out of the jurisdiction to Laos to transfer the embryo to the surrogate mother.

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