Parenthood, Genes, and Gametes: The Family Law and Trusts and Estates Perspectives

Abstract

This Article proposes a solution to resolve the legal issues that arise from the disposition of eggs, zygotes, and sperm upon divorce or death. I address two overlapping issues in family law and trusts and estates law: (1) whether the partner seeking procreation may use gametic material over the objections of the other partner and (2) how should the use of donated, willed, or marital gametic material affect the legal determination of parenthood?

In family law cases, courts generally rule in favor of the person seeking to avoid procreation, regardless of any evidence as to the intent of the parties. In trusts and estates cases, however, courts typically attempt to ascertain the testator’s intent. In both contexts, courts, as well as legislatures and scholarly commentary, emphasize biology and genetic connection.

This Article proposes a solution that respects both biology and intent by addressing the competing rights of avoiding and allowing procreation. Specifically, I argue that courts must “break the link” between biological and social parenthood when deciding cases that involve issues of family law and trusts and estates law.

Keywords: family law, trusts and estates, parenthood, genes, gametes, eggs, sperm, zygotes, divorce, death, procreation, genetics, biology, intent, biological and social parenthood

JEL Classification: K10, K39