Brave New Worlds? Same Old Laws.

Last Thursday we discussed a situation where children that were being carried by their mothers at the time a person died are able to be beneficiaries under a Will.

Artificial reproductive technology means that these provisions may be inadequate when dealing with all situations resulting from a child of the deceased being born after their parent’s death.

Warren Bazley was diagnosed with cancer of the liver in July 2009. He and his then partner Kate had one child and wanted to have more, however their Oncologists advised them that they would be “unable to have children” for 12 months after chemotherapy ceased, and treatment may leave Warren infertile.

Warren provided a semen sample to an IVF clinic in late July 2009, received intensive chemotherapy until December 2009- unfortunately the cancer had spread and Warren died in January 2010.

In December 2009 Warren and Kate married. Warren prepared and executed a Will appointing Kate, as one of the executors and trustees of his will. Kate was the principal beneficiary of Warren’s estate and provided for his children, and a stepchild.

Warren made no directive about the posthumous use of his sperm.

The IVF clinic stated that the ethical guidelines covering assisted reproduction state that unless there is a clear written directive consenting to the use of the sperm they could not allow it to be used to assist Kate to become pregnant.

The Court was equivocal on the matter.

There have been cases where insemination has already taken place with the resulting embryo being frozen and only placed in the uterus after death.

One such case involved a couple that entered an IVF program in 1993. The usual clinical practice for IVF programs is to create multiple embryos for transplantation. A son was born in 1994 as a result of an implanted embryo, however the Husband and Father died intestate in 1995. He was survived by his wife and four children (three of them from a previous marriage)and had further frozen embryos in storage.

The Court held that the embryos were not actually living at the date of the deceased’s death. As the intestacy rules are contingent upon an unborn embryo being born alive they could not inherit as part of the current legislation. However if an embryo was born alive it would become a child of the deceased therefore the same legal principals should apply as between frozen embryos and children en ventre sa mere.

Law Reform Commissions that have considered the question have come to different conclusions as to whether frozen embryos should be considered as en ventre sa mere for intestate succession although agree that as children of the deceased should be entitled to make an application for family provision

Some artificial reproductive techniques may delay birth leading to delays and complexity in the administration of a deceased estate, therefore, it is probably best to disregard for the purposes of intestate succession any child born by means of artificial reproductive technologies where the child was not en ventre sa mere at the death of the intestate.

Several Jurisdictions have subsequently amended succession legislation to clarify this situation, limiting unborn claimants of intestate estates only to those children en ventre sa mere.

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