Johnson, Summer A.

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McGeorge Law ReviewVolume 36Issue 4 Tribute to Robert K. Puglia, Late PresidingJustice of the California Court of Appeal, ThirdAppelate DistrictArticle 301-1-2005Family / Chapter 775: Babies with Bucks -Posthumously Conceived Children ReceiveInheritance RightsSummer A. JohnsonFollow this and additional works at: https://scholarlycommons.pacific.edu/mlrPart of the Legislation CommonsThis Greensheet is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusionin McGeorge Law Review by an authorized editor of Scholarly Commons. For more information, please contact mgibney@pacific.edu.Recommended CitationSummer A. Johnson, Family / Chapter 775: Babies with Bucks - Posthumously Conceived Children Receive Inheritance Rights, 36McGeorge L. Rev. 926 (2005).Available at: https://scholarlycommons.pacific.edu/mlr/vol36/iss4/30Chapter 775: Babies with Bucks-Posthumously ConceivedChildren Receive Inheritance RightsSummer A. JohnsonCode Sections AffectedFamily Code §§ 7611, 7630, 7650 (amended); Health and Safety Code§ 1644.7 (new); Insurance Code §§ 10172, 10172.5 (amended); ProbateCode §§ 249.5, 249.6, 249.7, 249.8 (new), § 6453 (amended).AB 1910 (Harman); 2004 Stat. ch. 775[Chapter 775] seeks to establish the conditions under which a childconceived after a parent has died is entitled to inheritance rights as if thechild were born in the lifetime of the parent.'I. INTRODUCTIONGaby Vernoff gave birth to a daughter four years after the death of herhusband . No, she didn't use an anonymous sperm donor to achieve her dream ofmotherhood-she used sperm taken from her deceased husband that had beenpreserved for this purpose.' Although her daughter is biologically related to bothGaby and her late husband Bruce, existing California law does not presumeBruce is the father of the child because he passed away long before theirdaughter's conception.4In 1949, scientists discovered the process of long-term storage of spermwhen they found that adding glycerol before freezing sperm allowed the sperm tobe stored for up to ten years.5 As a result, men, such as those with cancer andsoldiers heading off to battle, are cryogenically storing large amounts of geneticmaterial for future use.6 Women will likely join the ranks in the future, as thestorage of human eggs, now experimental, becomes an option for women.7 Inaddition to frozen genetic material, there are about 400,000 frozen embryosstored in the United States.81. ASSEMBLY JUDICIARY COMMITTEE, COMMITTEE ANALYSIS OF AB 1910, at 3 (May 4,2004).2. Robert Salladay, 'Dead Dads' Bill Takes on Difficult Legal Question, L.A. TIMES, May 17, 2004, atAl.3. Id.4. Id.5. Cindy L. Steeb, Note, A Child Conceived After His Father's Death?: Posthumous Reproduction andInheritance Rights, An Analysis of Ohio Statutes, 48 CLEV. ST. L. REV. 137, 140 (2000).6. Salladay, supra note 2.7. Id.8. Id.926McGeorge Law Review / Vol. 36Under existing California law, any child born outside of three hundred daysof a divorce or death of a parent is not presumed to be the child of that parent. 9Because the deceased parent is not legally considered his or her child's parent, aposthumously conceived child would not be considered for intestatesuccession-necessary to receive the inheritance to which the child otherwisewould be entitled-nor would the child receive any insurance proceeds the parentmight wish to confer upon him or her.'0The goal of Chapter 775, subject to certain conditions, is to allow for a childborn to a predeceased parent to inherit as though he or she had been born duringthe life of his or her parent."'II. LEGAL BACKGROUNDExisting law provides that, for the purposes of intestate succession, therequisite parent-child relationship must be established between a person and thatperson's natural parents or between an adopted person and that person's adoptingparent or parents.' 2 A natural parent and child relationship is established underthe Uniform Parentage Act of the Family Code." Existing law provides that aman is presumed to be the natural parent of a child under certain circumstances.'4Additionally, existing law provides that a person may bring an action todetermine the existence or non-existence of a father and child relationship.' Aperson may also bring an action to determine the existence of a mother and childrelationship-the provisions used to determine the existence or non-existence ofa father and child relationship may be used to the extent practicable.'6Moreover, existing law provides that life insurance proceeds shall be paidwhenever possible within thirty days after the death of the insured. 17 Where theinsurer fails or refuses to pay within the thirty-day period, interest shall accrue at9. CAL. FAM. CODE § 7611 (a) (West Supp. 2004) (A man is presumed to be the natural father of a childif "[hie and the child's mother are or have been married to each other and the child is born during the marriage,or within 300 days after the marriage is terminated by death or... divorce .... ).10. See ASSEMBLY JUDICIARY CoMMI-EE, COMMIYrEE ANALYSIS OF AB 1910, at 3 (May 4, 2004)(Existing law "[p]rovides that relatives of the decedent conceived before the decedent's death but bornthereafter inherit as if they had been born in the lifetime of the decedent. Thus California law currently limitsthe class of posthumously conceived children to those who were conceived prior to the parent's death.").11. Id.12. CAL. PROB. CODE § 6450 (West Supp. 2004).13. Id. § 6453; see also Steeb, supra note 5, at 164 ("The Uniform Parentage Act was approved in 1973at a time when state law treated legitimate and illegitimate children differently, including their right to intestatesuccession. The Uniform Parentage Act establishes a parent-child relationship between a child and the naturalor adoptive parent, regardless of the marital status of the parents").14. See CAL. FAM. CODE § 7611 (West Supp. 2004) (providing that a man is presumed to be the naturalfather of a child if he and the child's natural mother are married and the child is born during the marriage orwithin 300 days after the marriage is terminated by death or divorce).15. Id. § 7630.16. CAL. FAM. CODE § 7650 (West 1994).17. CAL. INS. CODE § 10172.5(b) (West 1993).2005 / Familynot less than the then current rate of interest." When the insurer makes such apayment in accordance with the terms of the policy, such payment fullydischarges the insurer from all claims under the policy unless, before payment ismade, the insurer has received, at its home office, written notice by anotherperson claiming an interest or entitlement to the payment.' 9III. CHAPTER 775A. Establishing ParentageChapter 775 provides a broader standard of presumed parentage. Under thisenlarged standard, a man or woman is presumed to be the natural parent of achild if the child is in utero ° within the required time after the death of thedecedent 2' and the decedent has provided in a signed writing, witnessed by acompetent witness that his genetic material is to be used for posthumousconception.22 The decedent must specify the person to whom the use of thegenetic material is granted for the conception of a child. 23 "The child must be inutero using the decedent's genetic material within two years from the date of thedeath certificate or entry of a judgment determining the fact of the decedent'sdeath, whichever comes first." 24 The child or the child's representative must givenotice within four months of decedent's death, to a person who has the power tocontrol the distribution of the decedent's property, that the decedent's geneticmaterial was available for posthumous conception.25Any interested party may bring an action to determine the existence of the26father and child relationship under the broadened natural parentage standard.B. Inheritance RightsUnder Chapter 775, for purposes of determining intestate succession, anatural parent relationship now includes the relationship established when adecedent leaves his genetic material with written authorization for the use andconception of a posthumous child.18. Id. § 10172.5(a).19. Id. § 10172.20. See BLACKS LAW DICTIONARY 829 (7th ed. 1999)(defining "in utero" as "[iln the womb; duringgestation or before birth").21. CAL. FAM. CODE § 7611 (f) (amended by Chapter 775); id. § 7650 (b).22. CAL PROB. CODE § 249.5(a)(1) (enacted by Chapter 775).23. Id. § 249.5(a)(3)(A)-(B).24. Id. § 249.5(c).25. Id. § 249.5(b).26. CAL. FAM. CODE § 7630(b) (enacted by Chapter 775).27. CAL. PROB. CODE § 6453(c) (amended by Chapter 775).McGeorge Law Review / Vol. 36When the person in charge of distribution of the decedent's property receivesnotice that the decedent made genetic material available for posthumousconception, he or she may not make a distribution of property until two yearsafter decedent's death. 8 If the person in charge of distribution of the decedent'sproperty does not receive timely notice of the availability of the genetic material,he or she may make the distribution of the decedent's property as if the child haspredeceased the decedent.29 The person is not liable for making such adistribution of the decedent's property.30IV. ANALYSISThe author of Chapter 775 states, "[i]t is my belief that there is a need forlegislation in this area of the law in order to provide guidance to the courts aswell as interested parties and participants when the question of inheritance rightsof posthumously born children comes into question."3 Legislation is indeednecessary as the incidence of requests for access to a deceased partner's spermcontinues to increase. A recent study reported that eighty-two requests weremade for postmortem retrieval of sperm from forty clinics, with the majoritybeing made in the last year of the study 2 Additionally, several cases have beenbrought against sperm banks by wives or girlfriends who seek to obtain frozensperm deposited by their husbands or boyfriends while they were alive.3 Someclinics do not routinely release sperm to the surviving partner 4 A 1998 study ofreproductive clinics revealed that almost half (45%) would not allow the use ofdecedent's sperm by a girlfriend or widow while more than a third (35%)allowed such use.33 As these statistics suggest, attempting posthumous conceptionof a child is a frequent occurrence.As will be discussed further below, only nine states have directly addressedthe question of posthumously conceived children and inheritance throughlegislation.36 This has left case law to fill the void left by the majority of stateswho have not directly addressed the issue. The cases dealing with the dispositionof sperm or other biological material have relied upon the intent of the grantor(s)to control the outcome.28. Id. § 249.6(a) (enacted by Chapter 775).29. Id. § 249.7.30. Id. § 249.6(d).31. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1910, at 3 (May 4, 2004).32. Kristine S. Knaplund, Postmortem Conception and a Father's Last Will, 46 ARIZ. L. REV. 91, 93-94(2004).33. Id. at 94-95.34. Id. at 91,95.35. Id.36. Id. at 98.2005 / FamilyIn 1984, the French Tribunal decided the case of Parplaix v. Cecos.3 7 AlainParplaix deposited his sperm at a government-run sperm bank after being toldthat chemotherapy treatment for testicular cancer would leave him sterile.38 Alainand his girlfriend were married two days before his death.39 Alain's wife thenattempted to obtain his sperm for artificial insemination. ' The French Tribunaldetermined that in the absence of clear, written instruction, Alain's intentcontrolled and since he had not directly expressed his intent, his wife and familywere in the best position to determine Alain's intentions.'In a divorce case involving the disposition of frozen embryos, Davis v.Davis,42 a Tennessee court held that the wife could not obtain the embryos andimplant them after the divorce because the Davis' had not expressly provided forthe disposition of the unused embryos and, further, because the husband had nowish to become a parent.43The first case in the United States to deal with a bequest of frozen sperm wasHecht v. Superior Court.44 In that case, William Kane committed suicide, leavingexplicit instructions as to the disposition of sperm he had deposited at a spermbank.45 He requested his sperm to be released to his girlfriend, Deborah Hecht,and her physician in the event of his death.46 Kane also bequeathed his sperm toHecht in his will, and left a letter to his two adult children and his potentialunborn child.47 After attempts to settle the will, Kane's two adult children filedseparate will contests.4 '8 The trial court ordered the sperm to be destroyed. 49 Hechtsought a peremptory writ of mandamus to vacate the decision of the trial court.The court of appeal held for Hecht finding that Kane expected to retain controlover his sperm after he gave it to the sperm bank; therefore, Kane could bequeathhis sperm for posthumous use at least where his intent was clear.'The above cases consider whether a child is to be born at all, based on thegrantor's intent. However, that is only half the story. The cases do not establishthe parentage of a child or whether or not a posthumously conceived child will be37. Steeb, supra note 5, at 149.38. Id. at 149-50.39. Id. at 150.40. Id.41. Id. at 151.42. 842 S.W.2d 588 (Tenn. 1992), cert denied Stowe v. Davis, 507 U.S. 911 (1993).43. Steeb, supra note 5, at 151.44. 16 Cal. App. 4th 836, 20 Cal. Rptr. 2d 275 (1993).45. Id. at 840, 20 Cal. Rptr. 2d at 276.46. Id.47. Id. at 840-41, 20 Cal. Rptr.2d at 276-77.48. Id.49. Id. at 844-45, 20 Cal. Rptr. 2d at 279-80.50. Id.51. Id. at 850-51, 20 Cal. Rptr. 2d at 283-84.930McGeorge Law Review / Vol. 36able to share in part of the decedent's estate, should the decedent not leave a will.It is this gap that Chapter 775 seeks to fill by focusing on the grantor's intent. 2States that have directly addressed the issue have come to differing results.For example, Louisiana has a law similar to Chapter 775. It provides that a childborn after the death of the decedent will be the child of the decedent if thedecedent authorized his surviving spouse to use his sperm and the child is bornwithin three years of the decedent's death. 3 Colorado, Delaware, Texas andWashington have extremely similar statutes 4 that, for example, provide:If an individual who consented in a record to be a parent by assistedreproduction dies before placement of eggs, sperm or embryos, thedeceased individual is not a parent of the resulting child unless thedeceased individual consented in a record that if assisted reproductionwere to occur after death, the deceased individual would be a parent ofthe child."Massachusetts simply provides that, for inheritance purposes, "[p]osthumouschildren shall be considered as living at the death of their parent." 56Several states and national organizations that have addressed this issue havegenerally found against a presumption of parenthood regardless of the intent ofthe grantor. Professing this view, Florida allows a child born posthumously tomake a claim against the decedent's estate only if he or she has been provided forin the decedent's will.57 Similarly, North Dakota does not consider the decedent-donor to be the posthumously born child's parent. 8 Finally, for inheritancepurposes, Virginia does not consider a child born more than ten months after thedeath of the decedent-donor to be the parent of the posthumously born child. 9In 1988, the National Conference on Uniform State Laws adopted theUniform Status of Children of Assisted Conception Act (USCACA), whichprovides that an individual who dies before implantation of an embryo is not theparent of the resulting child.60 The purpose of the USCACA was to "'providefinality for determining parenthood of those whose genetic material is utilized inthe procreation process after their death' and to 'avoid the problems of intestate52. See CAL. HEALTH & SAFETY CODE § 1644.7 (enacted by Chapter 775) (providing that any entity thatreceives genetic material shall provide a form to any depositor that may be used to convey the intent of thedepositor with respect to the use of that genetic material for the purpose of conceiving a child posthumously).53. LA. REV. STAT. ANN. § 9:391.1 (West 2004).54. COLO. REV. STAT. § 19-4-106 (2003); DEL. CODE ANN. tit. 13, § 8-707 (Michie Supp. 2003); TEX.FAM. CODE ANN. § 160.707 (West 2004); WASH. REV. CODE § 26.26.730 (2004).55. DEL. CODE ANN. tit. 13, § 8-707 (Michie Supp. 2003)56. MASS. GEN. LAWS ANN. ch. 190, § 8 (West 2004).57. FLA. STAT. ANN. § 742.17 (West 2003).58. N.D. CENT. CODE § 14-18-04 (2003).59. VA. CODE ANN. § 20-164 (Michie 2004).60. Knaplund, supra note 32, at 99.2005 / Familysuccession which could arise if the posthumous use of a person's genetic materialcould lead to the deceased being termed a parent.'61V. CONCLUSIONThe differing approaches regarding posthumously conceived childrenbetween states must be reconciled in favor of the unborn child. The statutes andregulations that seek to strip children of their parentage and inheritance rights doso for the sake of convenience in determining property rights for intestatesuccession.62 Statutes such as Chapter 775 provide a good balance between theneed to settle the decedent's estate quickly, for the benefit of the other designees,and providing legal parentage and inheritance rights to a child born within twoyears of the decedent's death, when the decedent's intent to do so is in writing.63Chapter 775 also follows the relevant case law by allowing the decedent's intentto control, rather than an arbitrary bright-line rule that removes posthumouslyborn children from intestate succession.61. Id.62. Supra notes 56-59 and accompanying text.63. Supra notes 19-22 and accompanying text.

Family / Chapter 775: Babies with Bucks - Posthumously Conceived Children Receive Inheritance Rights

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Family / Chapter 775: Babies with Bucks - Posthumously Conceived Children Receive Inheritance Rights

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