Assisted Reproductive Technology Update

Take-Away: Michigan has yet to update its laws to address assisted reproductive technology (AR), although a bill on this topic has been languishing in Lansing for several years now.

Background: With advances in medical technology, a child can be conceived with stored genetic material after the death of one or both genetic parents. Intestacy statutes, like Michigan’s, adopted long before these new technologies could have been envisioned, are ambiguous with regard to the treatment of a posthumously conceived child. Accordingly, the need exists to address this ambiguity because of the competing interests in inheritance rights between children who are born from these new assisted reproduction technologies (ART) and the rights of existing child beneficiaries. The goal is to strike a balance between these competing interests and to define the circumstances under which a posthumously conceived child is entitled to inherit from their predeceased parent(s) or share in their estate, or participate in trusts that are created by their parents’ ancestors.

Uniform Parentage Act (UPA): This uniform law was created in 2000, and later amended in 2017. The UPA provides that if an individual who consented in a record to be a parent by assisted reproduction (AR) dies before the placement of eggs, sperm or embryos, the deceased individual is not a parent of the resulting child unless the deceased individual consented in a record that if AR were to occur after death, the deceased individual would be a parent of the child.

The 2017 amendment to the UPA added a time limit within which a AR child was required to be conceived or born after death. Under the 2017 amendment, a deceased individual will be considered a parent of a posthumously conceived child if that individual gave written consent to AR by a woman who agreed to give birth if: (i) either (a) the individual gave written consent to posthumous reproduction, or (b) the individual’s intent to be a parent by posthumous reproduction is established by clear and convincing evidence; and (ii) either (a) the embryo is in utero within 36 months or (b) the child is born within 45 months of that individual’s death. [UPA  2017 Section 708.] States that have attempted to address is topic generally require that an individual consent specifically to posthumous reproduction, although a couple of states that have adopted the UPA offer an alternative to the individual’s written consent. Most of those states that have adopted the UPA impose some time limits within which a child must be conceived or born.

Michigan Bill: In January 2020,  the most recent AR bill was introduced in Michigan to define the status of children born from ART. [MI House Bill 5321 (2019.)] The Bill defines the status of children born from AR. A child conceived through AR after the individual’s death is deemed to be in gestation at the time of the decedent’s death if the child is in utero within 36 months, or born within 45 months after the individual’s death, and notice to creditors is given within nine months that the genetic material of the decedent is available for possible use in posthumous conception.

Gestational Agreement: Under the bill, a parent-child relationship will exist when a child is conceived under a gestational agreement using sperm or eggs after an individual’s death or incapacity as long as the individual intended to be treated as the parent of the child. The individual’s intent may be shown through a signed record, or facts and circumstances that establish such intent by clear and convincing evidence.

Divorce:  The bill provides that in the context of a divorce, if a married couple divorces before the placement of eggs, sperm or embryos, the birth mother’s former spouse is not a parent to a child born from AR unless the former spouse consented in a record to be a parent the child if AR were to occur after divorce.

Opposition: Previous bills with regard to AR have been filed with the Michigan Legislature, but they were slow to be reported out of the committees to which those bills were assigned. The AR bill has been part of what is called the Omnibus EPIC Bill, which makes many changes to EPIC, and with regard to AR, the definition of intestate succession rights. The 2020 bill met with some opposition, anecdotally from the ‘Right to Life’ lobby in Lansing. As a result of that opposition in 2020, it is hard to predict if the bill, as re-introduced in the 2021 legislative session, will move forward and become part of Michigan’s laws.

AR Planning: Because there exists the possible tension between children and AR children of a decedent, that tension needs to be addressed, whether or not Michigan adopts some form of AR legislation.

• Stored Genetic Material: Individuals with stored genetic material should clearly document their intent with regard to the use of that genetic material posthumously or in the event of a divorce. This would include expressing that intent with fertility clinics and in the individual’s durable powers of attorney with regard to the use and disposition of their genetic

Update Estate Planning Documents: If there is the possibility of AR within a family, the topic of AR needs to be addressed in either a Trust or Will, and possibly in durable powers of attorney, both property and health care. Such provisions that govern a posthumously conceived child would apply to a class gift or to a class bequest, and such provisions could be applicable to both the individual testator/settlor and that individual’s descendants under a Will or Trust. Even if the testator/settlor is beyond child bearing age, beneficiaries of that individual’s estate plan may engage in AR. This becomes particularly important if part of a family’s estate plan includes a dynasty trust that is intended to continue to benefit generations of descendants.

Definitions: In the absence of an AR statute, the clear definition of child, heir, or descendant in a Will or Trust needs to be provided, to address whether, or not, that definition includes an AR child. Such definitions to include or exclude AR children may also need to be included in a durable power of attorney (property or health) if ‘children’ are identified as attorneys-in-fact or patient advocates.

Impose Alternate Conditions: Even if Michigan gets around to adopting the proposed AR legislation, or the UPA, some individuals may want to modify those statutory default provisions. For example, some individuals may want to include AR children as a beneficiary, heir or descendant, but only within certain parameters, or they may want to impose certain conditions for an AR child to be included in a class, such as imposing a time frame different from the statute’s within which the AR birth must occur, an AR child’s birth may only to a surviving spouse or life partner of the decedent, or an AR child’s proof of maternity or paternity.

Conclusion: The all too frequent refrain is that science and medicine evolve far more rapidly than the ‘law’, and posthumously conceived children is just a more recent example of that refrain. It is occurring, whether or not estate planning instruments have anticipated it occurring. With a statute in place that addresses the intestacy rights of an AR child will help, but by far the best step is to update estate planning documents that contemplate there being one, or more AR children born within a family unit.