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

45 Pages Posted: 23 Oct 2012

See all articles by Naomi Cahn

Naomi Cahn

University of Virginia School of Law

Date Written: 2002

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

Suggested Citation

Cahn, Naomi R., Parenthood, Genes, and Gametes: The Family Law and Trusts and Estates Perspectives (2002). University of Memphis Law Review, Vol. 32, No. 3, 2002, GWU Legal Studies Research Paper No. 2012-98, GWU Law School Public Law Research Paper No. 2012-98, Available at SSRN: https://ssrn.com/abstract=2165541

Naomi R. Cahn (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
31
Abstract Views
557
PlumX Metrics