Parenthood, Genes, and Gametes: The Family Law and Trusts and Estates Perspectives

I. INTRODUCTION This Article focuses on a parenthood issue that raises concerns in both family law and trusts and estates law and which illustrates differences and similarities between the approaches of the two disciplines-the disposition of eggs, zygotes, and sperm upon divorce or death. This may, in some ways, seem a little obscure, however, there are almost 200,000 frozen embryos nationwide, and at least 20,000 are "involved in some type of custody dispute" either at divorce or among "surviving relatives of a donor who stored embryos prior to death."1 Some of the family law casebooks cite Davis v. Davis2 or related cases, involving the disposition of zygotes upon divorce.3 It has been a bitterly fought dispute in divorce cases, where courts have struggled with whether gametes are subject to property-based or custody-based rules.4 Many trusts and estates teachers do include the Hecht v. Superior Court5 case, which involved a man's attempts to will his sperm to his girlfriend, Deborah Hecht.6 Based on course content, this is a live issue in both types of courses. This Article covers a variety of situations involving family law, trusts and estates, and new reproductive technologies: disposition of zygotes at divorce or death and disposition of sperm and eggs upon divorce or death. Although there are certainly grounds for distinguishing eggs and sperm from zygotes-zygotes are closer to potential human life and require the union of two gmetes7--in the context of reproductive technology, both gametes and zygotes (Gs & Zs) provide the hope of producing a child. Consequently, they are not discussed seperately, unless the differences become relevant. There are two overlapping issues in each discipline. First, who makes decisions about the use of gametic material? Can the partner seeking procreation use gametic material over the objections of the other partner? The objecting gamete provider could be either a divorcing spouse or a dead individual who has indicated opposition in a testamentary document, or who may have left no instructions. The second, and related, issue, concerns how the use of donated, willed, or marital gametic material affects the legal determination of parenthood.8 If surviving relatives or divorcing spouses wish to use the gametic material, then what are the rights of the other spouse or the decedent's estate? Are courts likely to allow single parenting in either context? And, if notwithstanding one partner's objections, the other partner produces a child, then is the objecting partner the legal parent with the various attendant obligations? This second question has implications in family law for child support,9 custody, and visitation, and in trusts and estates law for inheritance issues, such as class gifts to children/issue, and the identification of "children" under intestacy statutes.10 The overlapping issues concern the disposition of this material once there has been a change in situation because the relationship has dissolved through separation of the parties11 or death. In these contexts, there may be no explicit direction; one party wants the material, the other wants it destroyed-at death, one family member may want the material and other family members may oppose that desire. …