Anexo I: actividades y material

a. Significance. According to the Center for Disease Control and Prevention, over

1% of all infants today are born as a result of assisted reproductive technologies, and that percentage is growing. Without asking, the planner never knows whether a particular client was born as a result or has descendants who were or will be born as a result of assisted reproductive technologies (ART). This includes insemination, in vitro fertilization, as well as other medical procedures. Without appropriate provisions in estate planning documents, surprising unintended results could occur.

Bruce Stone (Miami Florida) provides the forms addressed below. Bruce’s outstanding and very readable drafting style is quite evident in these forms. Bruce points out that he raises these issues with all clients, and almost all of them want to include the provisions – even those who express a desire for extreme simplicity in the documents.

These issues can have very long lasting effects. For example, suppose a grandchild born 20 years from now has a child from a same-sex partner conceived through ART 50 years from now? How the instrument is drafted today can impact how those future descendants are treated as beneficiaries.

Parties can draft into their estate planning documents how they want ART descendants to be treated as beneficiaries under their documents. Provisions drafted into the estate planning documents only impact rights under those documents, not other legal rights of the parties.

b. Central Theme: Who Is Family? A central theme of addressing how a particular client wants to approach assisted reproductive technologies is the issue of what the client considers “family.” For example, beyond just assisted reproductive technologies, why does anyone want to provide for great great great grandchildren who the clients will never know? This goes to the issue of “who is family?”

Focus on the client’s intention about family, and the client’s values and biases. The choices are not based on morality or law as it exists today. They are irrelevant in drafting ART provisions for clients.

c. Adoption. Most estate planning documents drafted currently deal with adoption.

Clause 1.1 provides that the age of the adopted person determines whether he or she is treated as a child of the adopting parent.

d. Child of Genetic Birth Mother. Clause 1.2 provides that a person will be treated

as the child of the woman who is both the genetic and birth mother of that person, whether or not conceived through ART, unless the woman’s parental status is terminated by adoption.

An optional provision also provides an exception if the genetic birth mother is a surrogate mother who does not intend to function as a parent after birth and who has a surrogate agreement with the intended parents. (For example, if the client’s granddaughter agrees to serve as a surrogate mother and has sex with the male of the couple who will be the intended parents, the baby will not be treated as one of the clients descendants.)

e. Genetic Father of Child Conceived by Copulation. Clause 1.3 addresses when a

child who was conceived by copulation is treated as the child of the genetic father. A person who is the genetic child of two parents who are married to each other (or in a similar relationship such as a civil union) either when that person was conceived or at any time after conception is conclusively the child of the genetic father. This assumes that the conception resulted from copulation of the genetic father with the genetic mother. (If the genetic father by copulation is not in a marriage or similar relationship, clause 1.7 [discussed below] will control.)

f. Conception Other Than By Copulation. Clause 1.4 addresses a child conceived

by means other than copulation of the genetic parents (i.e., by ART), using genetic material provided by the genetic parents with the intent to become a parent, which intent is acknowledged in a written instrument that is not revoked prior to the embryo being placed in gestation. It applies regardless whether the genetic parents are married to each other. As an example, it applies even if the resulting embryo is implanted into a surrogate mother. This clause only covers situations in which the child was placed in gestation during the genetic parent’s lifetime. (Clause 1.9, discussed below, addresses a child not placed in gestation during the genetic parent’s lifetime.)

Under this clause, the test of intention (with an acknowledged written instrument) is applied separately for each parent. Therefore, the child could be treated as the child of one genetic parent but not the other, even if they are married. This clause provides a default assumption that and incapacity causes revocation of the

consent. The clause does not specifically address divorce and whether it revokes consent.

g. Marriage (or Other Legal Relationship) Where One Spouse or Party Is Not a

Genetic Parent. Clause 1.6 provides that if only one party in a marriage (or

similar legal relationship) is a genetic parent, the other party will be treated as a parent of the child if he or she evidences an intention to be treated as the parent, without the necessity of going through a formal adoption proceeding. (As an example, this may be helpful in same-sex marriages where one of the spouses will not be a genetic parent [at least under current technologies].)

h. Intended Parent Under Agreement With Birth Mother. Clause 1.6 would be

relevant if the optional provision in clause 1.2 is used (providing that a surrogate mother is not treated as the mother of the child). Clause 1.6 says that the child will be treated as the child of the intended parents (or parent).

i. Father Not in Legal Relationship With Genetic Mother and Prior Written Intent To

Become Parent. Estate planning documents typically have an “illegitimates”

clause. Clause 1.7 is such a clause. It provides that a child who is not treated as the child of the genetic father under any of the preceding clauses will be treated as a child of the genetic father only if (i) he acknowledged parentage in writing, (ii) openly raised the person as his child, or (iii) was adjudicated to be the child’s father.

j. Child in Gestation on Parent’s Death. Clause 1.8 is similar to standard clauses in

instruments providing that a child in gestation but born after the death of the parent will be treated as a being alive at the parent’s death. (Some documents and legal authorities deal with the situation in terms of whether a child is

conceived before a person’s death. However, the key is gestation because under

ART, a child can be conceived years before a parent’s death.)

k. Child Not in Gestation During Parent’s Lifetime. Clause 1.9 says that if a child is

not in gestation on the death of a parent, the person will not be treated as a child of that genetic parent. In effect, if this clause is used, the estate planning document does not provide for posthumous children.

l. Children Placed in Gestation After Genetic Parent’s Death. If the client wants to

include posthumous children, the terms will be considerably more complex. Bruce has optional complex forms in his materials dealing with posthumous children.

m. Forms. The following form clauses were drafted by Bruce Stone, and they are

included with Bruce’s permission. Interestingly, Bruce’s documents also have explanatory comments (which are not included below) before each clause. He typically sends drafts of documents with the explanatory comments included for clients’ review, and then removes the explanatory comments in the final document for signature. (He has some had some clients who have requested that the explanatory comments be left in the document.)

Rules Governing Family Relationships and Eligibility for Distributions

1. The descendants of a person who are eligible to receive distributions from any trust created under this instrument include only persons who are treated as descendants of that person under the rules set forth in clauses 1.1 through 1.9.

Someone who is adopted or who is a genetic descendant of that person but who does not meet the conditions or requirements set forth in clauses 1.1 through 1.9 will not be a beneficiary of any trust created under this instrument.

Adopted Children

1.1 An adopted child will be regarded as a descendant of the adopting parent if the petition for adoption was filed with the court before the child’s eighteenth birthday, and the descendants of that child will be regarded as descendants of the adopting parent. An adopted child will not be regarded as a descendant of the adopting parent if the petition for adoption was filed on or after the child’s eighteenth birthday. If a court terminates the legal relationship between the parent and child while the parent is alive, that child and that child’s descendants will not be regarded as descendants of that parent. If a parent dies and the legal relationship with the parent’s child has not been terminated before the parent’s death, the child and the child’s descendants will still be regarded as descendants of the deceased parent even if another person later adopt the child.

Child of Birth Mother

1.2 A woman who is both the genetic and birth mother of a person will be treated as a parent of that person, whether the person was conceived by copulation or by means other than copulation, unless the woman’s parental status was terminated by adoption [optional provision: , subject to the following. A woman who, without any intent to function as a parent following birth, carried a person to birth under an agreement with that person’s intended parents or parent will not be treated as that person’s mother, and that person will not be treated as the child of that woman, whether or not the woman is a genetic parent of that person].

Genetic Father in Marriage or Substantially Similar Legal Relationship with Genetic Mother

1.3 If a person was conceived by copulation of the genetic parents, the person will be treated as the child of the genetic father if the genetic parents were parties to a marriage, civil union, domestic partnership, or substantially similar legal relationship with each other when the person was conceived or at any time after conception.

Conception Other Than By Copulation

1.4 If a person was conceived by means other than copulation, the person will be treated as the child of a genetic parent only if that parent provided his or her genetic material with the intent to become a parent acknowledged in a written instrument signed by that genetic parent which was not revoked by a subsequently dated written instrument signed by the genetic parent before gestation began. A genetic parent’s intent to become a parent will be deemed conclusively to have been revoked if a court determined that genetic parent to be legally incapacitated and the court did not restore that genetic parent’s legal capacity before gestation began, or if that genetic parent is missing (as defined in other provisions of this instrument), unless the acknowledged written instrument signed by that genetic parent expressly states that the intent to become a parent will not be revoked by the genetic parent’s legal incapacity or if that genetic

parent is missing. The provisions of this clause do not apply to a woman who is both the genetic and birth mother of that person.

Marriage or Substantially Similar Legal Relationship Where One Spouse or Party Is Not a Genetic Parent

1.5 If a person is treated under clause 1.4 as the child of a genetic parent, and if when the child was conceived that genetic parent was a party to a marriage, civil union, domestic partnership, or substantially similar legal relationship with someone who is not a genetic parent of the child, the child will be treated as the child of the other party to the marriage, civil union, domestic partnership, or substantially similar legal relationship if the other party acknowledged intent to become a parent in a written instrument signed by the other party which was not revoked by a subsequently dated written instrument signed by the other party before the child was in gestation.

Intended Parent Under Agreement With Birth Mother [optional provision] 1.6 A person will be treated as the child of another person who was not married to (or in a civil union, domestic partnership, or substantially similar legal relationship with) the birth mother of that person and who intended to be a parent of that person (whether or not the intended parent is a genetic parent of that person) under an agreement with the birth mother that was not revoked before the child was in gestation, whether or not the agreement is legally enforceable.

Father Not in Legal Relationship With Genetic Mother and With Prior Written Intent To Become a Parent

1.7. If genetic testing establishes that a person is the child of the genetic father but that person is not treated as the child of the genetic father under any of the preceding clauses, that person will be treated as the child of the genetic father only if:

1.7(a) the genetic father acknowledged parentage of the person at any

time after conception in a written instrument signed by the genetic father;

1.7(b) the genetic father openly raised and acknowledged the person as

his child; or

1.7(c) parentage was established by adjudication.

Child in Gestation on Parent’s Death

1.8 A child who was in gestation on the death of a person treated as a parent

of that child under any one of clauses 1.1 through 1.7 and who is born alive after the death of that person will be treated as living on that person’s date of death.

Child Not in Gestation During Parent’s Lifetime

1.9 A child born after the death of a person who would otherwise be treated

as a parent of that child under any one of clauses 1.1 through 1.7 will not be treated as that person’s child if that child was not in gestation on that person’s date of death.