In February 2021, New York adopted the Child-Parent Security Act (CPSA), a revolutionary and sweeping new law that applies to the legal parentage of children conceived using assisted reproductive means including in vitro fertilization (IVF). The statute adopts bedrock principles set forth in the Uniform Parentage Act and the American Bar Association’s Model Act Governing Assisted Reproduction, including that legal parentage of such children is established with reference to intent and consent to be a parent rather than to traditional legal assumptions based solely on genetic connection or the act of gestation. The implications of this conceptual paradigm shift are far-reaching, particularly when coupled with the ever-proliferating reproductive possibilities enabled by advances in assisted reproductive technology (ART), thus creating new and complex legal issues for family law practitioners in New York and around the country.
Let’s use New York law as a model to consider novel legal issues in the context of death and divorce resulting from scientific advances that enable reproductive genetic material (eggs, sperm and embryos) to be cryopreserved and stored for later use. In particular, what becomes of a couple’s stored embryos in the event of divorce? What happens when courts are called on to determine the rights of progenitors (also referred to as “intended parents” or “genetic contributors”) when they pursue IVF and the allocation of embryos on divorce? Given that it’s possible for stored genetic material to be used for procreation after the death of the genetic contributor, will a posthumously conceived child be legally recognized as the decedent’s heir for purposes of inheritance and any survivor benefits and, if so, under what conditions?
The law in this area is developing and largely varies by state. However, family law practitioners and estate planners are best guided by trends in decisional law, new legislation like the CPSA and a basic understanding of important components of the assisted reproduction process.
Pre-Conception Consent
The starting point for any analysis of what happens to stored genetic material on death or divorce is an examination of pre-conception consent and directive forms (clinic forms), which patients complete at the fertility clinic prior to undergoing IVF procedures. These forms can and do have profound consequences on the ability to use stored reproductive material in the future.
The clinic forms require patients to designate dispositional intent, which instructs the IVF clinic or storage facility as to how to handle cryopreserved eggs, sperm or embryos in the event of divorce, separation or the death of one or both of the genetic contributors. The dispositional options generally include instructions to: destroy and discard; donate to research or to another individual or couple for reproductive use; or grant sole control over the genetic material to one party who may then use it to attempt pregnancy or otherwise dispose of it in their sole discretion. Some clinic forms also include an election option to dispose of embryos as per the terms of a divorce settlement agreement or decree.
Embryo Disposition and Divorce
Many thousands of individuals have created embryos through IVF with a former spouse. Those embryos remain frozen and preserved notwithstanding the couple’s separation or divorce. It’s no surprise that disputes arise when one of them wishes to use the embryos to have a child after the dissolution of their relationship, and the other either doesn’t want to be a parent, doesn’t want to be a co-parent with the former spouse or consents to the use of the embryos for conception but doesn’t want to have any of the attendant financial obligations of a parent. In these cases, one genetic contributor typically wishes to use frozen embryos for procreation because it’s their only opportunity to have a biologic child (for example, in the case of oncological infertility), and the other genetic contributor objects to such use.
The legal and ethical considerations are vast, including whether one party’s interest in becoming a genetic parent outweighs another’s interest in avoiding forced parentage, or vice versa. Should clinic forms—which are signed when a couple is happily pursuing joint procreation—be binding after intervening changes in circumstances such as a divorce that alter the parties’ original intent? Does it make sense to rely on these forms to determine legal parentage? Should they be treated as binding contracts between former spouses notwithstanding that they’re technically agreements as between the progenitors, on the one hand, and the IVF clinic itself, on the other?
Absent extensive case law and statutory guidance on the topic, family law attorneys are left with the uncertainty of varying and oftentimes conflicting decisions from courts that have been called on to resolve these and related issues in the context of divorce proceedings. The following trends, however, have emerged. First, clinic forms are generally afforded great deference as evidence of the parties’ intent and are often enforced. Second, embryos are generally treated as a “special class” rather than as persons or property. Thus, traditional “best interest” analyses as applied in custody determinations are ill-fitting, and equitable distribution principles don’t apply to them. Third, forced parenthood is usually disfavored, and thus the party who objects to the use of the embryos to achieve a pregnancy generally prevails over the former spouse who seeks to use them to become a parent.
Courts have employed one of three distinct analytical frameworks in reaching these results. In New York, courts apply a purely contractual approach, which strictly enforces the elections made in the clinic forms, while courts in other states implement a contemporaneous mutual consent model or a balancing of interests analysis.
The New York Court of Appeals’ decision in Kass v. Kass1 articulates the strict contractual approach. In that case, a husband and wife created embryos through IVF during their marriage, indicating on the pre-conception clinic form that their stored embryos could be used by the clinic for research purposes in the event of their divorce. The couple later divorced and ratified their clinic form election in an uncontested divorce agreement. Soon after, the wife had a change of heart and sought custody of the embryos, arguing that they represented her only opportunity to achieve genetic parenthood. The husband counterclaimed for specific performance to permit the IVF clinic to use the embryos for research. The court enforced the terms of the clinic form pursuant to general rules of contract interpretation, emphasizing the importance of the parties’ manifested mutual intent as to reproduction.2
In re Marriage of Witten,3 a divorce proceeding in Iowa, is often cited for the contemporaneous mutual consent principle. In Witten, prior to undergoing IVF treatment, a couple signed a clinic form that provided the embryos would be released only with the approval of both parties but didn’t specify what would happen in the event the couple divorced. Eventually the couple divorced, leaving 17 frozen embryos. The wife sought “custody” of the couple’s frozen embryos so that she could use them to bear a genetically linked child, while the husband sought to permanently enjoin either party from unilateral disposition or use of the embryos without the written consent of both parties. The trial court held that the clinic form governed and that unless the parties could agree on disposition, the clinic would retain possession of the frozen embryos. The Iowa Supreme Court rejected the wife’s argument that the best interest standard should be applied to the frozen embryos and held that embryo agreements entered into at the time of IVF between patients and fertility clinics are enforceable and binding, subject to the right of either party to change their mind with respect to the disposition. The court further held that when one or both parties change their minds, contemporaneous mutual consent of both parties is required for transfer, release, disposition or use of the embryos. Because the parties no longer concurred with the prior agreement and were unable to reach a new agreement, the court enjoined both parties from using the embryos without the other’s written consent.
Finally, the Superior Court of Pennsylvania’s decision in Reber v. Reiss4 illustrates the balancing of interests approach. In that case, a husband and wife created several embryos as a fertility preservation method following the wife’s diagnosis of breast cancer. Their clinic forms didn’t indicate dispositional intent in the event of divorce but did contain a provision that the embryos would be destroyed after three years. Thereafter, the wife underwent treatment, after which she was told by her medical team that she wouldn’t be able to bear children. Shortly after the wife’s treatment ended, the husband filed for divorce. The husband sought to have the embryos awarded to him to be destroyed, arguing that he didn’t wish to have a child with his ex-wife or to incur the financial obligation of an unintended child, and the wife sought to have the embryos awarded to her for procreation. After balancing the equities and giving weight to the wife’s promise to use all reasonable efforts to support the child without the husband’s financial assistance, the court awarded the frozen embryos to the wife.
New York’s new CPSA melds principles from each of the three judicial analytical frameworks and may help to avoid similar litigation between spouses in years to come. Section 581-306 of the law allows spouses with joint dispositional control of embryos to enter into an agreement, distinct from the clinic form, which will be effective on divorce transferring legal rights and control of the embryos to only one of them and declaring that the other won’t be a legal parent of any child born from the embryos (and is thus absolved of all attendant parental support obligations) unless they sign a writing, prior to embryo transfer, stating that they want to be a parent. By declaring the transferring individual not an intended parent, the transferring spouse becomes the equivalent of a donor under the statute and thus avoids and releases all present and future parental and inheritance rights and obligations to a resulting child and former spouse.
Posthumous Conception
As it relates to children conceived through ART after death, case law has developed principally through claims for Social Security survivor benefits. The U.S. Supreme Court held in Astrue v. Capato5that the eligibility of a posthumously conceived child to receive Social Security survivor benefits is to be determined by reference to applicable state intestacy law and not biological parentage.
Many states don’t have express statutory provisions applicable to whether a posthumously conceived child is entitled to inherit. In states that have enacted legislation to address the status of posthumously conceived children, the goal has been to balance the interests of competing beneficiaries, to provide for the orderly and timely administration of estates and to protect the reproductive rights of the deceased parent.
Under New York law, genetic material can’t be the subject of disposition in a will. Instead, use of reproductive genetic material after death is subject to the provisions of the CPSA, the Estates Powers and Trusts Law (EPTL) and to elections made on clinic forms. Section 581-307 of the CPSA provides that if an individual who consented in a record to be a parent by assisted reproduction dies before the transfer of eggs, sperm or embryos, the deceased isn’t a parent of the resulting child unless: (1) they consented in a signed record that if assisted reproduction were to occur after death, they would be a parent of the child; and (2) the record complies with the EPTL.
Section 4-1.3 of the EPTL is the relevant provision. It provides that a child conceived through ART is a distributee and included in any disposition of property when it’s established that, among others: (1) the deceased intended parent expressly consented in a written instrument executed not more than seven years prior to death that if assisted reproduction were to occur after their death, they would be a parent of the child; (2) the child was in utero no later than 24 months or born no later than 33 months after the intended parent’s death; and (3) the deceased intended parent authorized an agent to make decisions about the use of their genetic material after their death in a written appointment instrument executed not more than seven years before the intended parent’s death. Notably, the appointment instrument may not be altered or revoked by a provision in the will of the intended parent, and if the agent is a spouse, the written instrument is revoked by a final judgment of divorce.
An Evolving Area
The legal (and sometimes ethical) conundrums presented by ART will no doubt continue to emerge as the science evolves. Professionals in all disciplines who grapple with these issues are well served by challenging and expanding traditional notions of parentage to embrace a world in which pre-conception intent and consent are determining factors.
As it relates to divorce and estate planning specifically, matrimonial practitioners and trusts and estates counsel should give due care and consideration, in the first instance, to any and all clinic forms that our clients may have signed, and ensure that clients understand their implications (and, if necessary, modify them).
Endnotes
1. Kass v. Kass, 91 N.Y.2d 554 (1998).
2. Kass, ibid., remains good law in New York today, with recent embryo disposition cases following suit. See, e.g., Finkelstein v. Finkelstein, 162 A.D.3d 401 (1st Dept. 2018).
3. In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003).
4. Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012).
5. Astrue v. Capato, 132 S. Ct. 2021 (2012).