Article on Reforming Parent-Child Succession
Reproductive technology isexpanding the modern notion of family. In 2009, over 60,000 infants were bornby assisted reproductive technology (“ART”) in the United States. Worldwide, 250,000 ART babies are born per year,representing about 4% of all live births. These figures show an increasing trend in the use ofreproductive technology, with the number of procedures performed nearlydoubling during the past decade. Along with this modern baby boom, parentage andinheritance laws are changing in some jurisdictions to accommodate new familyformations. In other jurisdictions, the legislature’s failure to amendlong-established laws tailored to the traditional family calls into questionthe state of inheritance for children of ART.
Consider Sally, a two-year old girl who has been nurtured and raised byJack and Julie. Sally is not genetically related to Jack, and the two peopleshe knows as “parents” are unmarried. For several years, Jack and Julieunsuccessfully attempted to have children. With Jack’s approval and support,Julie used a third-party sperm donor and underwent intrauterine insemination.Sally—a child of ART—was their dream come true. When she was born, Julie andJack both placed their names on the birth certificate, but Jack never formallyadopted Sally. Jack holds himself out as the father of Sally and expresses tofriends and family that he intends to support and raise her. If Jack diesintestate in Tennessee, does Sally have a claim to his estate? Is Sally the ““issue”of Jack as defined by Tennessee intestate succession statutes? Does the factthat Jack signed the birth certificate and acts as the intended and functionalfather establish him as Sally’s father absent formal adoption of Sally ormarriage to Julie?
Tennessee law largely fails to address these and otherinheritance-related questions arising from developments in modern technology. Based on the currentstate of law, Sally’s right to Jack’s estate is unclear because Sally isneither the biological nor the adopted child of Jack. One Tennessee statute contemplates non-traditional meansof conception, but only concerns the straightforward situation in which amarried woman has a child through intrauterine insemination. Case law likewise demands action by the Tennesseelegislature. In 2005, the Tennessee Supreme Court addressed a parentage disputeconcerning children of ART. However, the court expressly limited its holding to thefacts of that particular case and called upon the legislature to “debate thecompeting values and the costs” and “to determine what kind of regulation toimpose.”
Tennessee has two opposing options: passively ignore the complications tothe traditional family structure that ART presents or actively resolve thesechallenges to clarify the rights of this vulnerable class of children. Asreproductive technologies become increasingly available through a variety ofmethods, these surrounding issues will arise more frequently, forcing families to resort to the courts todetermine the rights of ART children. Such families may come in varied forms: individualsclaiming to be parents could be a married heterosexual couple, an unmarriedheterosexual couple, an unmarried same-sex couple, or a single person. Amid this crisis of parental identity,the rights of children of ART hang in the balance.
The determination of who qualifies as a parent has important ramificationsin several inheritance situations. As seen in Sally’s hypothetical, intestacystatutes govern succession from parent to child when a parent dies without awill. However, even if the decedent has a will that names thechild of ART as a beneficiary, many testators unintentionally write wills thatdo not fully dispose of all of their property, requiring the residuary estateto pass through intestate succession. Additionally, these statutes come into play when atestator makes a class gift designating “descendants,” “children,” or “issue”as the beneficiaries. Intestacy statutes construe the meaning of these terms and determine whether a child ofART is a member of the class who receives the gift. Finally, intestacy statutes affect the rights ofposthumously conceived children, who are conceived after a biological parenthas died through the use of preserved sperm or embryo. Determination of a parent-child relationship in this contextgoverns the receipt of social security benefits made available to a decedent’sminor children if the child is an intestate heir according to state law.
In light of thesechallenges to the traditional family structure, this Note advances a reworkingof Tennessee’s intestate succession statutes. Part II of this Note more fullydiscusses the current state of Tennessee parentage and intestacy law and thecase law surrounding ART. Part III then turns to the 2008 Uniform Probate Code(UPC) Amendments that provide a complex solution to the problem of inheritancefor ART children. Part IV takes a broader look at the way that other stateshave addressed the emerging issue. Part V of this Note uses the UPC and otherjurisdictional approaches as guidance to assert that Tennessee should adopt anintent-based approach to determine who is a parent of a child of ART, askingwhether there is recorded consent by an alleged parent or, in the absence ofrecorded consent, evidence that the individual acted as a parent within thefirst two years of a child’s birth. Part VI offers brief closing remarks.