Testing The Inheritance Of Test Tube Babies Born Post-Mortem in Utah

The number of children conceived through in vitro fertilization has doubled over the last decade. The technology that has made these children possible has also challenged inheritance laws, especially in circumstances when a child is conceived after the death of a parent.

Planning an inheritance is hard enough when you know all of your family members. Matters can get dicey when planning to include future generations yet unborn. However, the current science of fertility, preservation, and in vitro fertilization has stretched inheritance laws to new limits when it comes to determining “unknown heirs.”

The New York Times noted some of the challenges in an article titled “Fertility Treatments Produce Heirs Their Parents Never Knew.”

There was a time, not so long ago, when family lines split and branched like a tree. This was known, literally, as per stirpes in the estate law canon. Inheritance law has adhered to this concept.

Problems arise when family lines do not follow neatly branching blood ties in a one-to-one relationship. More specifically, what happens when certain kinds of fertility treatments or preservations allow “genetic material” to be preserved well past the lives of the genetic mother or father? Are these children still heirs?

Utah law on the subject is governed by the Utah Uniform Parentage Act  78B-15-101 et. seq. The Utah Uniform Parentage Act, Utah Code section 78B-15-707, states, ” If a spouse dies before placement of … sperm …, the deceased spouse is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased spouse would be a parent of the child.”   In Utah , it is clear from the statute that one’s status as a biological father, is legally insufficient to confer on a biological father the status of “parent”.  Additionally, Utah Code Section 75-2-114(1) apparently requires compliance with the Utah Uniform Parentage Act in order to establish the parent and child relationship insofar as intestate succession is concerned.

In rich estates this means a new potential heir to lay claim to assets. In even more modest estates, this means a new eligible child for their parents’ benefits under various governmental programs.

So, how do you plan for the heir you will never know? In the first instance, it likely will all hinge on why you preserved genetic material in the first place. Many now preserve eggs prior to undergoing chemotherapy or another treatment, and some simply before menopause. Many men preserve genetic material before going to war or, likewise, just in case.

If you have preserved your genetic material, then what are your reasons for doing so? And in Utah if you do preserve your genetic material for purposes of creating heirs, you must specifically comply with the somewhat complex requirements of the Utah Uniform Parentage Act in order have your wishes carried into effect.

 Reference: The New York Time (August 30, 2013) “Fertility Treatments Produce Heirs Their Parents Never Knew”