A Chip Off the Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It
82 Pages Posted: 25 Nov 2011
Date Written: 2011
For thousands of years, the process for determining one’s heirs remained unchanged. For a woman, her heirs were fixed at her death; for a man, his heirs were fixed no later than nine months after his death. Then came cryopreservation and, with it, the ability for individuals to conceive children years after their death. This development has created many — largely unanswered — questions. While posthumous conception implicates numerous moral, ethical, and legal issues, this Article focuses on the legal status of posthumously conceived children in the estate law context.
Despite pleas from both courts and commentators, few legislatures have been willing to tackle this sensitive topic. Most judges and scholars who have addressed it agree the three primary goals of any response should be to ensure the efficient administration of estates, carry out the decedent’s intent, and protect the children’s best interests. However, no consensus has emerged regarding which of these goals should receive priority. These goals need not be mutually exclusive, though, but can each be achieved with appropriate legislation. In this Article, I take a critical look at the statutory and judicial approaches proposed to date, break down the strengths and weaknesses of each, and introduce two new concepts that bridge the gaps in the prior approaches. Specifically, statutes should (1) separate the question of whether a posthumously conceived child is an heir from whether the child will in fact inherit assets, and (2) provide fiduciaries discretion to distribute or retain assets when cryopreserved genetic material exists, based on certain conditions. These improvements will provide flexibility not found in prior approaches and, as a result, advance each of the three key goals. This Article provides legislatures, judges, and commentators who tackle this issue with both a comprehensive historical perspective on the issue and a blueprint to follow going forward.
Keywords: probate, trust, wills, estates, assisted reproduction, cryopreservation, posthumous conception
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