Chinese Surrogate Grandchild

Recently there have been reports of a baby born in China to a surrogate mother four years after his parents died in a car crash, the couple, who died in 2013, had frozen several embryos hoping to have a child through IVF.

The lack of precedent for a case of this kind in China required the deceased couple’s parents to undertake a protracted legal battle to be allowed to use the embryos. The future grandparents worked with a surrogacy agency and decided on Laos, where commercial surrogacy was legal.

In order to prove citizenship of the child, born in China – with the surrogate travelling there on a tourist visa; the grandparents had to prove paternity,  to establish that the baby was indeed their grandson and that both parents had been Chinese nationals.

We have discussed previously the legal notion of a child who is En Ventre Sa Mere – in the mother’s womb. Who for the purpose of inheritance, is treated as having been in existence at the time of their father’s death if subsequently born alive.

In most jurisdictions legislation provides that where a married woman, with the consent of her husband, undergoes a fertilisation procedure as a result of which she becomes pregnant, the husband shall, for the purposes of the law of the State, be treated as if he were the father of any child born as a result of that pregnancy.

In Florida a man made a Will providing for his children however no provision was made in the will for posthumous children.

Eighteen months after he died, his wife gave birth to twins conceived via IVF treatment using the husband’s sperm deposited in the sperm bank. His widow applied for Social Security Survivors Benefits based on her husband’s lifetime earnings.

The man died in Florida, where children are not entitled to inherit from a parent if they were conceived after that parent’s death. The Social Security Administration applied state inheritance laws to decide if a person was a “child” under the Social Security Act and therefore ineligible for survivors benefits.

The Widow appealed the Social Security Administration’s decision to the US Court of Appeals for the Third Circuit which reversed the Social Security Administration’s decision.

On appeal the United States Supreme Court affirmed the original decision by imposing a time limit on when a child who’s conceived after the parent’s death must be born in order to inherit, suggesting that state legislators take into account the difficulties of administering an estate if a child born many years after her parent’s death was legally entitled to inherit part of the estate.

California and Iowa children must be conceived and in utero within two years of a parents death, however Delaware has no time limits as long as there is written consent from the deceased parent.

An Australian  woman made an urgent application to the Queensland Supreme Court following her partner’s death seeking an order to have his testes and sperm removed and stored at a fertility clinic.

The Court granted the orders as the sperm had to be removed within 24hours to maintain viability. However to use any of the extracted material a further court order would be required.

The Court commented that in allowing the extraction of the testes and sperm it gave the woman the opportunity to reflect on

‘whether to proceed with the use of any extracted material’, and any further applications made by her ‘will not be rendered futile through loss of viability of the sperm’.

The English Court of Appeal has ordered the Human Fertilisation and Embryo Authority (HFEA) to reconsider an application by a 60-year-old British woman who wants to use her dead daughter’s frozen eggs to give birth to a grandchild to receive fertility treatment in the United States.

The woman’s daughter who died of bowel cancer in 2011 aged 28 wanted to have IVF treatment but became too ill.

HFEA faced an issue that the daughter had consented to treatment for egg removal and storage (including storage after her death) and also to the use of, other than for research purposes, her eggs after her death, she didn’t specifically consent to the proposed treatment.

The Court heard that the daughter was desperate to have children and asked her mother to “carry my babies”, believing she had signed all the necessary forms to authorise her mother to carry her child after her death.

The HFEA, which had great sympathy for the parents of the dead daughter, argued that after much consideration had decided that there wasn’t sufficient evidence of informed consent.

The Court of Appeal reaffirmed the need for informed consent but concluded there was sufficient evidence of the daughter’s true wishes.

The question that needs to be answered is whether artificial reproductive techniques that delay birth and lead to delays and complexity in the administration of a deceased estate, should such children be disentitled for the purposes of intestate succession or family provision where the child was not en ventre sa mere at the death of the intestate.

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