Article on Estate Planning for Posthumously Conceived Children
Brooke Shemer (University of Baltimore School of Law, J.D. 2013) recently published an article entitled, Estate Planning for the Posthumously Conceived Child: A Blueprint for the Sperm Donor, 42 U. Balt. L. Rev. 181 (Fall 2012). Provided below is the introduction to her article:
In 2003, Gayle Burns became pregnant through artificial insemination using the preserved sperm of her husband, who died from cancer two years earlier. In his contractual agreement with the reproductive clinic, Michael Burns indicated his intent to prevent destruction of his sperm in the event of his death, his consent to assisted reproduction, and his desire to give his wife legal rights to his sperm upon his death. Gayle acknowledged their discussion about having children and her husband’s hope for her to conceive his child upon his death; he had even purchased a life insurance policy to provide for Gayle and their child.
Despite Michael’s proactive efforts to make known his intent to father a child posthumously, Gayle was initially denied social security benefits when she applied on behalf of their son. The decision was subsequently reversed, but then reversed again based on Utah’s prohibition of payments to posthumously conceived children (PCC). Although Utah law requires the sperm donor to record his intent to “‘parent’ a child conceived through assisted reproduction … in order to later be legally” recognized as the father, Michael’s intent has thus far been ignored. If the completed consent form and purchase of a life-insurance policy for the benefit of his future child were insufficient to declare Michael Burns’ intent to parent and financially support the posthumously conceived child, it is difficult to imagine what additional hurdles might be imposed upon the donor during his lifetime to ensure his intent is carried out and the posthumously conceived child’s inheritance rights are protected.
Gayle Burns may have avoided the extensive litigation she has undertaken to secure benefits for her son if Utah’s statute allowed the decedent’s intent to govern in particular circumstances, thereby protecting the class of PCC born to donors who complied with the requisite statutory formalities. A signed, written, and witnessed consent form that could not be contested without liability for legal fees and court-mandated acceptance would eliminate the need to rely on oral testimony from the family as to the decedent’s intent. Further, when a donor engages in estate planning during his lifetime for the purpose of financially providing for the after-born, whether a source of funds exists for the child’s inheritance will be ascertainable at the donor’s death, and such planning will reinforce his intent for the posthumous conception to occur, as indicated by the consent form.
Cryopreservation and assisted reproductive technologies (ART) are often utilized by young, childless couples who are drained by their medical expenses and fail to engage in estate planning, thereby amplifying the need for a statute that identifies the inheritance rights of these PCC and informs the donors of the requisite steps they must take to ensure their intent is carried out. However, even if there are no assets in the decedent’s estate to which the child could bring a claim, a consent form stipulating the donor’s intent would be relevant to determine whether the after-born child may inherit through the estates of the decedent’s relatives, or as a class member in their estate plans.
Under the Social Security Act and the Supreme Court’s Capato decision, PCC are only entitled to receive social security survivor benefits if the after-born heirs are eligible to inherit under the intestacy laws of the state where the wage earner was domiciled. In light of this need for an unambiguous declaration of PCC’s inheritance rights under state law, the increasing use of reproductive technology and incidence of PCC, and the extensive litigation spotlighting PCC and their right to insurance benefits, Maryland’s General Assembly repealed and reenacted Maryland’s after-born heirs statute in 2012. The amended law confers inheritance rights upon PCC born within two years of the decedent’s death if the donor provided written consent for the posthumous conception to occur and written consent to be the parent of the posthumously conceived child. While there has been no litigation in Maryland to date by PCC seeking an award of insurance benefits, the amended statute should allow PCC to recover social security survivor benefits if the donor provided the requisite consent and the child is born within the statute of limitations period, as these PCC would be eligible to inherit under Maryland’s intestacy law. Yet despite this attempt to stem the uncertainty as to whether PCC are entitled to social security funds, the law fails to adequately protect the inheritance rights of PCC, and may likewise fail to secure their insurance benefits.
This comment aims to illustrate why Maryland’s intestacy statute is unsatisfactory and should be amended again to enumerate the circumstances under which PCC, conceived from banked sperm after the father’s death, may inherit through their deceased father’s estate. The proposed statute would apply only when a decedent dies intestate or a testator bequeaths property to ““my children;” however, the statute would not be implicated when a testator names his spouse as the sole legatee of his estate plan. Part II discusses the reproductive technology that has allowed children to be born years after the father’s death, developments in Maryland and federal law related to the inheritance rights of PCC, and the inadequacy of Maryland’s current after-born heirs statute. Part III explains why PCC should only be entitled to inherit from the deceased parent’s estate in limited circumstances, considering the interests of others affected by these new heirs. Part IV proposes a solution whereby Maryland donors would complete a consent form at the time of the donation, creating a signed, written, and witnessed record that expresses the intent for the posthumous reproduction to occur and the desire to financially provide for the child. While the proposed statute would maintain a presumption against inheritance rights for PCC, the donor may rebut this presumption by complying with these statutory formalities during his lifetime to unequivocally indicate his intent. Lastly, in order to secure inheritance rights for his after-born child and a timely resolution of his estate, the proposed statute would require the donor to engage in estate planning during his lifetime to ensure a source of funds for the child’s inheritance. For example, the creation of an inter vivos or testamentary trust for the benefit of the donor’s wife during her lifetime and then to his children would satisfy this final statutory requirement. Such clearly manifested intent could hardly be contested.
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