The New Reality of Marketing Genetic Material

The marketing of genetic material, such as eggs and sperm, is becoming big business in the United States, with an estimated $100 million in sales last year.¹ But are the laws surrounding the use of this genetic material keeping up with the legacy that is created with the use of this material?

In particular, if the donor of the genetic material is known, what are the legal ramifications, especially with regard to the inheritance rights and the beneficiary rights of a child with respect to the donor parent? For example, if a husband develops a terminal condition and freezes sperm for eventual use by his wife through artificial insemination, what rights does that child have even though the child may be born more than nine months after the death of the father?

A new law that was passed by the 2012 General Assembly attempts to answer this question.² The essence of the law is that if (1) the donor is known; (2) the donor consents to the use of his or her genetic material for artificial insemination in a written document; and, (3) the child is born within two years of the death of the donor, then the child will be considered the child of the donor for all legal purposes. Does this mean that if the donor’s heirs are entitled to governmental benefits such as Social Security, that a child born more than nine months after the death of donor is entitled to receive those benefits?

A case recently heard by the U.S. Supreme Court, Astrue v. Capato,³ dealt with just this situation. In that case, the husband was diagnosed with cancer soon after his marriage. The cancer treatment was such that it would sterilize the husband. Since the couple had one child naturally, they decided to have some of the husband’s sperm frozen so that their one child could have a sibling. The husband died not long after the sperm donation, and after the husband’s death, the mother was artificially inseminated. While we are still waiting for the Supreme Court’s decision, it is clear that how a state defines the term “child” will be important in the outcome of that case.

Even though the law was proposed for good intentions, the negative doctrine of unintended consequences has been raised. It has been argued that this law could muddle distributions from estates, life insurance policies and retirement accounts where the heirs of a donor are potential beneficiaries. Specifically, if it cannot be determined who all of the donor’s children are until two years after the death of the donor, it will mean that estates, trust, insurance companies, and retirement account custodians will not be able to make distributions until that two-year period has passed.

Another situation involves the curious donor. While the new law makes it clear that there must be written consent, what about the curious donors who disclose their identities to their own offspring? In a recent article that appeared in Time Magazine,⁴ a male could identify 20 of his offspring, and estimates that there could be as many as 140 of his offspring world-wide.

What rights, if any, would these 140 children accrue if the donor made his existence known to these 140 children? Would each of these children become legitimized under the law, and be eligible for governmental benefits through the father? Perhaps, because the current law, as written, excludes only donors who intend to be anonymous. So, will the curious donor unintentionally expose his estate to claims after his or her death?

What may have been considered science fiction at one time has become our new reality.

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¹Frozen Assets, by Jay Newton-Small (Time, April 16, 2012).
²As of this writing, Senate Bill 71/House Bill 101 is awaiting signature by Governor Martin O’Malley.
³On appeal from Capato v. Commissioner of Social Security (3rd Cir., January 2011).
⁴Frozen Assets, by Jay Newton-Small (Time, April 16, 2012).