Over the decades, substantial
advances in medicine and biotechnology have taken place, which now make it
possible for individuals to conceive biological children from stored sperm or
eggs even after a parent has died. Owing
to its cost and uncertainty, this isn’t something that occurs with great
frequency, but it is sometimes pursued when a couple wishes to have a child (or
more children) but one of the parents is dying of a terminal illness. After the parent’s death, a true biological child of that person might
successfully be born, but is that baby a legal
child of the deceased parent?
Although there have been extremely
few cases dealing with this question (apparently only one in New York: Matter of Martin B., 17 Misc.3d 198, 841
N.Y.S.2d 207 (Sur. Ct. New York Co. 2007)), the New York State Legislature felt
it was a compelling problem that needed to be solved. In which case, in 2014, the State passed and
enacted several revisions to our Estates, Powers, and Trusts Law to provide
clarification of who qualifies as a “child” of a pre-deceased parent. Most important of which is the new §4-1.3,
which provides that “a genetic child is the child of his or her genetic parent
or parents and … is an [heir of the genetic parent] … if it is established
that:” the genetic parent made a written directive about his or her stored
genetic material within 7 years of his or her death, which “expressly consented
to the use of his or her genetic material to posthumously conceive his or her
genetic child, and authorized a person to make decisions about the use of the
genetic parent's genetic material after the death of the genetic parent…”
This is what I would call a
“Genetic Will”. It is a separate written
directive from one’s Will, and necessitates fewer formalities than an actual
Will, but it is similarly one’s posthumous directive on how certain items (his
or her genetic material) may be used after death, and by whom. In fact, a person’s Will (even subsequent to
the making of a “Genetic Will”) cannot alter or revoke a provision in the
“Genetic Will”. The legislation includes
a sample form for people to use, but if a couple (married or otherwise) is
contemplating needing this kind of directive, they should seek the advice of an
estate planning attorney.
That’s because, for a
posthumously-conceived child to be considered the legal child and heir of a
deceased person, the following minimum (and somewhat complicated) steps need to
be taken:
(1) The
deceased parent signed and dated a “Genetic Will”:
a.
Which sets out his or her consent for the conception of
a child from his or her genetic material after death;
b.
Which specifies the name and address of a “custodian”
of the genetic material;
c.
In the presence of at least 2 independent adult
witnesses, who also sign the document;
d.
Within 7 years before his or her death.
(2) After
the parent’s death, the “Genetic Custodian” notifies the deceased person’s
executor within 7 months of the opening of an estate that there is genetic
material available for the conception of a posthumous child of the deceased
person.
(3) The
“Genetic Custodian” records the “Genetic Will” in the Surrogate’s Court within
7 months of the parent’s death.
(4) A
child is conceived no more than 2 years after the parent’s death;
(5) The
child is born no more than 33 months after the parent’s death.
As you can see, although this new
process provides some latitude for the inheritance of a posthumously-conceived
child, it is far from a perfect system.
First, for estate executors faced with a “Genetic Will”, it can cause
further frustration and delay in calculating each person’s share in an
estate. If there are 3 living children,
but one or two (or three or more!) children could be conceived within 24 months
after the parent’s death, the estate cannot be finalized and settled before the
executor knows for sure what each child’s share will be. Furthermore, if a posthumously-conceived
child is born more than 33 months after death, he or she would still not be an heir to the deceased
parent even under this new legislation.
The cutoff date of 33 months seems just as arbitrary as the cutoff date
of death, or 9 months after the date of death.
Under our existing estates laws, any child conceived before a parent’s death (and born thereafter), would be
considered an heir of that parent; but now there is a distinction made between
those children conceived and born within 2 – 2 ¾ years after a parent’s death,
and those children conceived and born within 2 years and 10 months of their
parent’s death.
The challenges apparent in this new
statute are still largely hypothetical (since so few of these situations
arise), but as medical technology advances, and costs and risks of this
technology decrease, we might someday be faced with a number of posthumous, genetic
heirs, along with their less-advantaged younger genetic siblings.
