"The purpose of this Note is to concur with the recent amendments to the Uniform Probate Code (UPC) addressing the ability of posthumously conceived children to inherit via intestacy from their deceased parents. Newly added sections 2-120 and 2-121 (added to address developments in intestacy law due to assisted reproduction) state that when a person has voluntarily deposited gametic material for the use of his surviving spouse and a child is born within certain timeframes, there is a presumption that the person intended to parent a posthumously conceived child, rebuttable only by clear and convincing evidence to the contrary. In particular, the purpose of this Note is to explain why this rebuttable presumption of intent is superior to a requirement of 'consent in a record to posthumous conception that would include the individual,' as proposed by Professor Ronald Chester in his 2004 article, and why the drafters of the UPC were right to reject Chester's proposed language.
Part II of this Note will briefly discuss common methods of assisted reproductive technology (hereinafter ART). Part III will introduce the ideas of Professor Chester, who was asked by Professor Lawrence Waggoner, Reporter for the Uniform Probate Code, to revise section 2-108 of the Revised Uniform Probate Code. This Note will explain why the drafters of the UPC were right to reject the 'consent in a record' requirement. Primarily, the analysis will focus on the incompatibility of requiring decedent's intent in an intestacy statute, as well as the incompatibility of requiring decedent's consent to conception in a legal context where it is irrelevant. It will also focus on Equal Protection analysis, including the argument set forth by Julie Goodwin in her 2005 article.
Part IV will argue that Chester's 'consent in a record' requirement is inferior to the concept of a presumption of intent, rebuttable by clear and convincing evidence, for decedents who have voluntarily deposited genetic samples for use by their spouses. This Note will explain in detail that; first, a rebuttable presumption of intent is more consistent with the likely actions of a reasonable person; second, a rebuttable presumption of intent does not present any Constitutional issues; and third, a rebuttable presumption of intent will help to alleviate the burden on society's resources. Finally, in Part V, this Note will conclude by agreeing with the drafters of the UPC that the rebuttable presumption of intent should apply only in the cases of married decedents who have voluntarily deposited genetic material for the use of their spouses."
Posted by Neil I. Rumbak, Associate Editor, Wealth Strategies Journal.
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