Mary Anne Bobinski (with assistance from Michael Manhas ‘12,

Aminollah Sabzevari ’11)Please do not reproduce or quote without permission

Reproductive Technology and Estate Planning

OverviewA. Introduction to Assisted Reproduction (AR)B. AR Issues Related to Estate Planning

1. Disposition of gamete and embryo deposits2. Posthumous gamete retrieval (PSR)3. Who are the parents?4. Posthumous Birth

C. Implications for Estate Planning

A. Intro to Assisted Reproduction

• Potential separation of components of traditional parenthood: genetics, gestation, intent to parent: – Gametes: collection, storage, use– Embryos: creation, storage, disposition– Gestation: motherhood v. surrogacy

• Rapid technological development, slow or non-existent legislative response, and small number of judicial decisions

• Relevance of comparative approaches

The Modern Era

B. AR Related to Estate Planning1. Disposition of gamete and embryo deposits? – consent

2. Posthumous gamete retrieval (PSR)– Control and parenthood

3. Who are the parents?– Genetics, gestation, intent

4. Posthumous birth

1. Disposition of Gametes and Embryos

• Gametes or embryos stored “on ice”• Disputes over control of disposition during life of

donors (e.g., Davis litigation in U.S.)– Marital property, contract, constitutional rights not

to become a parent?– Expanded use of banking contracts with specific

disposition rules, including disposition at death

Disposition of Gametes and Embryos

• Influence of inter-vivos debates on disposition of gametes/embryos after death

• Importance of consent by statute (UK, Canada) or judicial decision. See D. (K.) v. D. (N.), 2009 CarswellBC 2021 (ordering destruction of stored embryos as part of divorce proceeding).

Assisted Human Repro Act, S.C. 2004, c. 2

Reference re Assisted Human Reproduction Act, 2010 SCC 61 upheld sec. 8, 9 of AHRA. Use of reproductive material without consent8. (1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose.

Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137

3. Before a person makes use of human reproductive material for the purpose of creating an embryo, the person shall have a document signed by the donor of the material stating that, before consenting to the use of the material, the donor was informed in writing that(a) subject to paragraph (b), the human reproductive material will be used in accordance with the donor’s consent to create an embryo for one or more of the following purposes, namely,(i) the donor’s own reproductive use,(ii) following the donor’s death, the reproductive use of the person who is, at the time of the donor’s death, the donor’s spouse or common-law partner,(iii) the reproductive use of a third party ….

Assisted Human Repro Act, S.C. 2004, c. 2

Use of in vitro embryo without consent• 8(3) No person shall make use of an in vitro

embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.

Implications for Estates• Consent for use but what about disposition and

possession? (Burns & Sumakova 2010)• Treatment of sperm/egg/embryos by will or in

intestacy• Influence of banking contracts – e.g., calling for

destruction on death or purporting to settle disposition

North American Case Law (Burns & Houston 2008)

USA: Louisiana: Hall v. Fertility Institute of New Orleans(1994)• Sperm can be an succession asset.California: Hecht v. The Superior Court of Los Angeles (1996)• Sperm is a “unique” form of property and is not a succession asset.• Sperm donor’s intention is important, as choosing whether to

procreate is a “fundamental liberty”.

2. Posthumous gamete retrieval• Cases involve sudden death and emotional

distress• Short time period for extraction• Ex parte cases under significant time pressure• In jurisdictions w/o legislation or clear

caselaw, courts have sometimes permitted

English Case Law (Burns & Sumakova 2010):

L v. The Human Fertilisation and Embryology Authority, Secretary of State for Health, [2008] EWHC 2149 (Fam)

• Application by widow to extract sperm from deceased husband was rejected.

• Human Fertilisation and Embryology Act 1990 required the proof of consent from the husband.

• “Absent effective consent, the court had no power to authorise retrieval or lawful storage of gametes”

Assisted Human Repro Act, S.C. 2004, c. 2

Posthumous use without consent• 8(2) No person shall remove human reproductive

material from a donor's body after the donor's death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.

Assisted Human Repro Act, S.C. 2004, c. 2

[Minors] 9. No person shall obtain any sperm or ovum from a donor under 18 years of age, or use any sperm or ovum so obtained, except for the purpose of preserving the sperm or ovum or for the purpose of creating a human being that the person reasonably believes will be raised by the donor.

3. Who are the Parents?A. OverviewB. Reforms in BCC. The Challenge to AnonymityD. Reproductive Tourism

A. Overview: Who are the Parents ?

• Courts and legislatures have struggled to determine whether parentage should be established by genetics, intent, or presumptions.

• Traditionally, a child born of a woman married to a man was deemed to be the child of both.

Overview: Who are the Parents ?• Assisted conception, including in vitro

fertilization and artificial insemination, complicates this definition.

• Family Law Act fills the gap in the legislated definition of parentage.

BC Reforms• Act includes presumptions that birth parents are

parents and that donors are not parents.• Exception through agreements, including agreements

that child will have more than two parents.• Surrogacy requires written consent of birth mother

before and after birth. • Implications for estate planning.

C. Anonymity Debate

Litigation• Pratten v. B.C. (AG), 2011 BCSC 656 (CanLII)(plaintiff challenges

policies preserving anonymity of sperm donors)• Adoptees and individuals conceived through assisted

reproduction were treated differently under the Adoption Act in their ability to determine their genetic parents.

• This amounted to discriminatory legislation under s. 15 of the Charter.

• Law has been declared invalid but declaration suspended for 15 months as of May 19, 2011.

Litigation• “New York Paternity Fight May Have Millions

of Ripples,” New York Times, April 17, 2011 (woman’s so-far unsuccessful fight to have father who raised her removed from birth certificate, thus opening the door to inheritance from Italian millionaire she claims was her genetic father).

D. Reproductive Tourism• Variations in costs and rules across jurisdictions leads to

“reproductive tourism” – Avoid legal constraints (lack of supply, age limits, procedure

limits, discrimination based on age/marital status/sexual orientation, etc)

– Ability to purchase, lower costs than U.S.– sometimes to 15% (IVF 12k compared to 2k in Russia; $300 eggs compared to $5k, surrogacy $4-10k instead of $25k+)(source, J. Daar)

Prevalence of Reproductive Tourism• U.S. clinics marketing to Canadians:http://www.seattlefertility.com/patients/canadianPatients.asp• Marketing for U.K., U.S. and other clients:http://www.treatmentabroad.com/infertility-treatment-abroad/http://ivfvacation.com/

• 'Enjoy it,' U.S. woman who gave birth at 60 tells new Calgary mom, CBC News, Feb. 6, 2009. http://www.cbc.ca/health/story/2009/02/06/birnbaum.html?ref=rss&loomia_si=t0:a16:g2:r3:c0.171928:b21688805

Legal Consequences• Questions about citizenship and parentage

– 2007 case involving Japanese couple and U.S. surrogate. Japan deems birth mother to be legal mother, would have required intended mother to adopt to obtain parental rights. Citizenship through father. http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2010.01320.x/pdf

– 2008 case (Baby Manji) involving anonymous donor egg, Indian surrogate and Japanese couple, who divorced before birth of the child. Under Indian law, not clear who the mother was and father required to adopt but not eligible as then single. Child not Japanese or Indian citizen. Would need to be adopted by father in Japan for citizenship.

– Other cases with France, Germany, etc.

4. Posthumous Birth• Gamete and embryo banking likely to increase number of posthumous births.• Traditional rules for ID children cast into doubt: death plus 9 months? • Family Law Act removes uncertainty in this area.

Sample Case law (Burns & Houston 2008)

In the Matter of the Estate of William J. Kolacy (2003)• Two children conceived and born after their father’s death• Relevant New Jersey statute used “conceived before death” definition.

Court considered the legislative intent.• Result: children conceived after parental death would be treated the same

as other biological offspring, “unless doing so would unfairly intrude on the rights of other persons or would cause serious problems in terms of the orderly administration of estates.”

US Case Law (Burns & Houston 2008)

Federal benefits statute relies on state law definitions of family.Lauren Woodward v. Comm’r of Social Security (2002)• Judicial balancing test: the interests of these children with the State’s interest

in the orderly administration of estates.• Children must prove their genetic relationship and parental consent to the

posthumous conception along with intent to provide support for the child.• Court might impose time limits.Khabbaz v. Comm’r, SSA (2007)• Court determined statute prevented posthumously conceived children from

becoming legal heirs.

Posthumous Birth and the Family Law Act• A posthumously conceived child is an heir of the deceased person’s estate if the

deceased person is a parent under the parentage provisions. • Parentage requires:

– the deceased to have stored human reproductive material for their own use before death.

– the deceased to have consented to:• the use of the reproductive material after their death by an individual

married to or in a marriage like relationship with the deceased and• being the parent of a child conceived after the person’s death.

– that a person married to or in a marriage like relationship with the deceased used the material for that purpose.

Posthumous Birth and the Family Law Act• These changes apply to both the Estate Administration Act

and the Wills, Estates and Succession Act.• Written notice must be given to the deceased person’s

personal representative who is responsible for administering the will and to people whose interest in the estate may be affected by the use of the deceased’s eggs, sperm or embryo (e.g., other beneficiaries).

• To limit uncertainty in wills and estates law, the child must be born within two years of the person’s death.

C. Implications and Conclusion

Advice from Experts: Testate Succession (Burns & Sumakova 2010)

Wills• “A parent can protect the rights of children born from

posthumously conceived and/or implanted embryos in their will.

• Solicitors who draft wills should ask their clients they have donated genetic materials and if they have consented to any post-mortem collection or use of genetic materials.”

Wills (Burns & Sumakova 2010)

• “Clients requesting Born within Marriage Clauses should be made aware of the possible implications on any children born via posthumous conception.”

• “If the client has contributed to existing stored embryos or has consented under the AHRA to the use of their genetic materials for posthumous conception, then time limits should be considered. Otherwise estate trustees could be held up for years while the possibility of a new child (and heir) exists.”

BibliographyClare E. Burns & Anastasija Sumakova, Mission Impossible: Estate Planning and Assisted Human Reproduction, WeirFoulds LLP, 2010 CBA National Conference, Aug. 16, 2010.

Clare E. Burns & Claire Houston, Beneficiaries on Ice: Assisted Reproductive Technology and Succession Law in Ontario, OBA, The Estate Plan: Dynamic or Dynamited Program (2008)

Hall, Bobinski, Orentlicher, Health Care Law & Ethics (7th ed. Walters Kluwer) and web supplements.

Conclusion