Dean Mary Anne Bobinski - Ethics and Reproductive Law

1. Reproductive Technology and Estate Planning
Mary Anne Bobinski
(with assistance from Michael Manhas ‘12,
AminollahSabzevari ’11)
Please do not reproduce or quote without permission

2. Overview
A. Introduction to Assisted Reproduction (AR)
B. AR Issues Related to Estate Planning
1. Disposition of gamete and embryo deposits
2. Posthumous gamete retrieval (PSR)
3. Who are the parents?
4. Posthumous Birth
C. Implications for Estate Planning

3. A. Intro to Assisted Reproduction
• Potential separation of components of traditional
parenthood: genetics, gestation, intent to parent:
– Gametes: collection, storage, use
– Embryos: creation, storage, disposition
– Gestation: motherhood v. surrogacy
• Rapid technological development, slow or non-existent
legislative response, and small number of judicial decisions
• Relevance of comparative approaches

4. The Modern Era

5. B. AR Related to Estate Planning
1. Disposition of gamete and embryo deposits?
– consent
2. Posthumous gamete retrieval (PSR)
– Control and parenthood
3. Who are the parents?
– Genetics, gestation, intent
4. Posthumous birth

6. 1. Disposition of Gametes and Embryos
• Gametes or embryos stored “on ice”
• Disputes over control of disposition during life of
donors (e.g., Davis litigation in U.S.)
– Marital property, contract, constitutional rights not
to become a parent?
– Expanded use of banking contracts with specific
disposition rules, including disposition at death

7. Disposition of Gametes and Embryos
• Influence of inter-vivos debates on disposition of
gametes/embryos after death
• Importance of consent by statute (UK, Canada) or
judicial decision. See D. (K.) v. D. (N.), 2009
CarswellBC 2021 (ordering destruction of stored
embryos as part of divorce proceeding).

8. Assisted Human Repro Act, S.C. 2004, c. 2
Reference re Assisted Human Reproduction Act, 2010 SCC 61
upheld sec. 8, 9 of AHRA.
Use of reproductive material without consent
8. (1) No person shall make use of human reproductive
material for the purpose of creating an embryo unless the
donor of the material has given written consent, in
accordance with the regulations, to its use for that purpose.

9. Assisted Human Reproduction (Section 8 Consent)
Regulations, SOR/2007-137
3. Before a person makes use of human reproductive material for the purpose of creating
an embryo, the person shall have a document signed by the donor of the material stating
that, before consenting to the use of the material, the donor was informed in writing that
(a) subject to paragraph (b), the human reproductive material will be used in accordance
with the donor’s consent to create an embryo for one or more of the following
purposes, namely,
(i) the donor’s own reproductive use,
(ii) following the donor’s death, the reproductive use of the person who is, at the time of
the donor’s death, the donor’s spouse or common-law partner,
(iii) the reproductive use of a third party ….

10. Assisted Human Repro Act, S.C. 2004, c. 2
Use of in vitro embryo without consent
• 8(3) No person shall make use of an in vitro
embryo for any purpose unless the donor has
given written consent, in accordance with the
regulations, to its use for that purpose.

11. Implications for Estates
• Consent for use but what about disposition and
possession? (Burns &Sumakova 2010)
• Treatment of sperm/egg/embryos by will or in
intestacy
• Influence of banking contracts – e.g., calling for
destruction on death or purporting to settle
disposition

12. North American Case Law (Burns & Houston 2008)
USA:
Louisiana: Hall v. Fertility Institute of New Orleans(1994)
• Sperm can be an succession asset.
California: Hecht v. The Superior Court of Los Angeles (1996)
• Sperm is a “unique” form of property and is not a succession asset.
• Sperm donor’s intention is important, as choosing whether to
procreate is a “fundamental liberty”.

13. 2. Posthumous gamete retrieval
• Cases involve sudden death and emotional
distress
• Short time period for extraction
• Ex parte cases under significant time pressure
• In jurisdictions w/o legislation or clear
caselaw, courts have sometimes permitted

14. English Case Law (Burns &Sumakova 2010):
L v. The Human Fertilisation and Embryology Authority, Secretary
of State for Health, [2008] EWHC 2149 (Fam)
• Application by widow to extract sperm from deceased
husband was rejected.
• Human Fertilisation and Embryology Act 1990 required the
proof of consent from the husband.
• “Absent effective consent, the court had no power to
authorise retrieval or lawful storage of gametes”

15. Assisted Human Repro Act, S.C. 2004, c. 2
Posthumous use without consent
• 8(2) No person shall remove human reproductive
material from a donor's body after the donor's
death for the purpose of creating an embryo unless
the donor of the material has given written
consent, in accordance with the regulations, to its
removal for that purpose.

16. Assisted Human Repro Act, S.C. 2004, c. 2
[Minors] 9. No person shall obtain any sperm or
ovum from a donor under 18 years of age, or use
any sperm or ovum so obtained, except for the
purpose of preserving the sperm or ovum or for
the purpose of creating a human being that the
person reasonably believes will be raised by the
donor.

17. 3. Who are the Parents?
A. Overview
B. Reforms in BC
C. The Challenge to Anonymity
D. Reproductive Tourism

18. A. Overview: Who are the Parents ?
• Courts and legislatures have struggled to
determine whether parentage should be
established by genetics, intent, or
presumptions.
• Traditionally, a child born of a woman married
to a man was deemed to be the child of both.

19. Overview: Who are the Parents ?
• Assisted conception, including in vitro
fertilization and artificial
insemination, complicates this definition.
• Family Law Act fills the gap in the legislated
definition of parentage.

20. BC Reforms
• Act includes presumptions that birth parents are
parents and that donors are not parents.
• Exception through agreements, including agreements
that child will have more than two parents.
• Surrogacy requires written consent of birth mother
before and after birth.
• Implications for estate planning.

21. C. Anonymity Debate

22. Litigation
• Pratten v. B.C. (AG), 2011 BCSC 656 (CanLII)(plaintiff challenges
policies preserving anonymity of sperm donors)
• Adoptees and individuals conceived through assisted
reproduction were treated differently under the Adoption Act in
their ability to determine their genetic parents.
• This amounted to discriminatory legislation under s. 15 of the
Charter.
• Law has been declared invalid but declaration suspended for 15
months as of May 19, 2011.

23. Litigation
• “New York Paternity Fight May Have Millions
of Ripples,” New York Times, April 17, 2011
(woman’s so-far unsuccessful fight to have
father who raised her removed from birth
certificate, thus opening the door to
inheritance from Italian millionaire she claims
was her genetic father).

24. D. Reproductive Tourism
• Variations in costs and rules across jurisdictions leads to
“reproductive tourism”
– Avoid legal constraints (lack of supply, age limits, procedure
limits, discrimination based on age/marital status/sexual
orientation, etc)
– Ability to purchase, lower costs than U.S.– sometimes to 15%
(IVF 12k compared to 2k in Russia; $300 eggs compared to
$5k, surrogacy $4-10k instead of $25k+)(source, J. Daar)

25. Prevalence of Reproductive Tourism
• U.S. clinics marketing to Canadians:
http://www.seattlefertility.com/patients/canadianPatie
nts.asp
• Marketing for U.K., U.S. and other clients:
http://www.treatmentabroad.com/infertility-
treatment-abroad/
http://ivfvacation.com/

26. • 'Enjoy it,' U.S. woman who
gave birth at 60 tells new
Calgary mom, CBC News, Feb.

27. Legal Consequences
• Questions about citizenship and parentage
– 2007 case involving Japanese couple and U.S. surrogate. Japan deems birth
mother to be legal mother, would have required intended mother to adopt to
obtain parental rights. Citizenship through father.
http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2010.01320.x/pdf
– 2008 case (Baby Manji) involving anonymous donor egg, Indian surrogate and
Japanese couple, who divorced before birth of the child. Under Indian law, not
clear who the mother was and father required to adopt but not eligible as
then single. Child not Japanese or Indian citizen. Would need to be adopted by
father in Japan for citizenship.
– Other cases with France, Germany, etc.

28. 4. Posthumous Birth
•Gamete and embryo banking likely to increase number of
posthumous births.
•Traditional rules for ID children cast into doubt: death plus
9 months?
• Family Law Act removes uncertainty in this area.

29. Sample Case law (Burns & Houston 2008)
In the Matter of the Estate of William J. Kolacy (2003)
• Two children conceived and born after their father’s death
• Relevant New Jersey statute used “conceived before death” definition.
Court considered the legislative intent.
• Result: children conceived after parental death would be treated the same
as other biological offspring, “unless doing so would unfairly intrude on
the rights of other persons or would cause serious problems in terms of
the orderly administration of estates.”

30. US Case Law (Burns & Houston 2008)
Federal benefits statute relies on state law definitions of family.
Lauren Woodward v. Comm’r of Social Security (2002)
• Judicial balancing test: the interests of these children with the State’s interest
in the orderly administration of estates.
• Children must prove their genetic relationship and parental consent to the
posthumous conception along with intent to provide support for the child.
• Court might impose time limits.
Khabbaz v. Comm’r, SSA (2007)
• Court determined statute prevented posthumously conceived children from
becoming legal heirs.

31. Posthumous Birth and the Family Law Act
• A posthumously conceived child is an heir of the deceased person’s estate if the
deceased person is a parent under the parentage provisions.
• Parentage requires:
– the deceased to have stored human reproductive material for their own use
before death.
– the deceased to have consented to:
• the use of the reproductive material after their death by an individual
married to or in a marriage like relationship with the deceased and
• being the parent of a child conceived after the person’s death.
– that a person married to or in a marriage like relationship with the deceased
used the material for that purpose.

32. Posthumous Birth and the Family Law Act
• These changes apply to both the Estate Administration Act
and the Wills, Estates and Succession Act.
• Written notice must be given to the deceased person’s
personal representative who is responsible for administering
the will and to people whose interest in the estate may be
affected by the use of the deceased’s eggs, sperm or embryo
(e.g., other beneficiaries).
• To limit uncertainty in wills and estates law, the child must be
born within two years of the person’s death.

33. C. Implications and Conclusion

34. Advice from Experts: Testate Succession (Burns
&Sumakova 2010)
Wills
• “A parent can protect the rights of children born from
posthumously conceived and/or implanted embryos in
their will.
• Solicitors who draft wills should ask their clients they
have donated genetic materials and if they have
consented to any post-mortem collection or use of
genetic materials.”

35. Wills (Burns &Sumakova 2010)
• “Clients requesting Born within Marriage Clauses should be
made aware of the possible implications on any children born
via posthumous conception.”
• “If the client has contributed to existing stored embryos or
has consented under the AHRA to the use of their genetic
materials for posthumous conception, then time limits should
be considered. Otherwise estate trustees could be held up for
years while the possibility of a new child (and heir) exists.”

36. Bibliography
Clare E. Burns & Anastasija Sumakova, Mission Impossible: Estate Planning and
Assisted Human Reproduction, WeirFoulds LLP, 2010 CBA National
Conference, Aug. 16, 2010.
Clare E. Burns & Claire Houston, Beneficiaries on Ice: Assisted Reproductive
Technology and Succession Law in Ontario, OBA, The Estate Plan: Dynamic or
Dynamited Program (2008)
Hall, Bobinski, Orentlicher, Health Care Law & Ethics (7th ed. Walters Kluwer) and
web supplements.

37. Conclusion