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.
Posthumously conceived children can become a quandary for the rich and the not-so-rich alike. "We're going to see a flurry of activity on this, because new technologies are ballooning," said Sharon Klein, managing director at Wilmington Trust and chairwoman of the trusts, estates and surrogate's courts committee of the New York City Bar Association. "You read about women in their late 20s and early 30s who are saving their eggs and want to focus on their careers and haven't met the right partner yet," she said. The woman's eggs could be used to produce a child even if the woman never wanted the eggs used after her death.
The law is clear on one thing: when a trust document does not address the issue, Klein said, "children born with the new technology are entitled to inherit with the same rights as a natural-born child."
Consider the example of a sick person who, before undergoing chemotherapy that will cause sterility, donates sperm or eggs to be frozen, in hopes of having children later. The patient intends to have the children after recovery. But should the patient die without something in writing stating this intent, the surviving partner could have a claim on that genetic material and could use it to produce a child.
Other possibilities exist. A couple who has embryos left over after having children through in vitro fertilization could, instead of destroying them, donate them to a woman, essentially giving her a child they created. That could have unintended consequences. "It's not inconceivable now that if the father and mother of that embryo were to strike it rich, the child born of that other woman could say, 'Those are my genetic parents,' " said John Olivieri, a partner at White & Case. And if the child says that, chances are he or she would ask for a share of the genetic parents' wealth.
"Posthumous reproduction is the perfect storm of competing interests," said Susan Wolf, professor of law, medicine and public policy at the University of Minnesota School of Law. "There's the surviving partner who wants to reproduce, the interests of the deceased while they were alive or as they memorialized them, the pre-existing kids who don't want their interest diluted and finally the kids who are brought into the picture but who may be financially most at risk."
Right now about a third of the states have laws recognizing the rights of posthumously conceived children.