Current Uniform Acts

Assisted Human Reproduction Working Group Report 2009

V.  Existing legislation that may be affected by decisions on policy issues related to parentage:

[73]    While the Working Group was not called on to look at legislative issues beyond parentage, it became clear during our work that other legislation is either affected or may be needed to deal with legal issues beyond parentage given the recommendations made in this paper on parentage.  Some examples follow.  However, if jurisdictions intend to adopt legislation based on the proposed uniform Act, they will need to carefully review all of their statutes that touch on children and family entitlements.

[74]    Human Tissue is there any inconsistency between the existing provincial/territorial Human Tissue legislation and the Assisted Human Reproduction Act of Canada?  The definition of “tissue” and of “transplant” may be broad enough to cover the removal of eggs, sperm or embryos from the human body pre or post death.  For example, note the Saskatchewan Human Tissue Gift Act [44] defines these two terms as follows:

(c) “tissue” includes an organ, but does not include any skin, bone, blood, blood constituent or other tissue that is replaceable by natural processes of repair;

(d) “transplant” as a noun means the removal of tissue from a human body, whether living or dead, and its implantation in a living human body, and in its other forms it has corresponding meanings.

[75]    The Australian guidelines would seem to suggest that extraction of gametes/sperm post death falls under this legislation. 

[76]    Intestate Succession – the Manitoba Law Reform Commission issued a report in November 2008 that reviews issues of entitlement for children born following the death of a parent.[45]

[77]    Intestate succession in Manitoba is governed by The Intestate Succession Act.[46]

[78]    The report states[47]:

Subsection 1(1) of the Act defines “issue” as “all lineal descendants of a person through all generations”.  A posthumously conceived child, being biologically related to the person, might seem to qualify as a “lineal descendant”, but the Act states further,

1(3) Kindred of the intestate conceived before and born alive after the death of the intestate inherit as if they had been born in the lifetime of the intestate. 

No mention is made of those who might be both conceived and born after the death of the intestate.  The Act also makes reference to “surviving issue” in other sections.

Two American cases, in related matters, raised arguments on behalf of posthumously conceived children that the wording of their respective state succession Acts, akin to Manitoba’s, could be interpreted to include such children as “issue” or as “surviving issue”.

In Finley v. Astrue[48] a widow claimed that her child, the result of IVF, should be eligible in her husband’s hypothetical intestacy as having been conceived before her husband’s death but born after his death. Her argument equated conception with fertilization, which had happened in a petri dish, while her husband was still alive. The frozen embryos were thawed and implanted in her uterus eleven months after his death. The child was born in March 2003, but the father had died in July 2001. The court concluded that the Arkansas state legislature, in enacting its intestate succession statute (including a section almost identical to Manitoba’s subsection 1(3)) in 1969, could not have intended the word “conceived” to include the process of IVF, which was then unknown. Conception was considered to have occurred at the embryo implantation stage. The court said that to define conception as argued, and thus to include posthumously conceived children in intestacies, would implicate public policy concerns best left to the legislature.

It could also be observed that, if the requested interpretation had been granted, posthumously conceived children born through IVF would be included in intestacies, but not those born of AI, surely an undesirable difference of treatment by the law.

In Khabbaz v. Commissioner, Social Security Administration[49] it was argued that a posthumously conceived child, born two years after her father’s death, and conceived through AI with his banked sperm, was “surviving issue” in his hypothetical intestacy.  The New Hampshire court found that the plain meaning of the word “surviving” is “remaining alive or in existence”.  For the child to remain alive or in existence after her father’s death, she would necessarily have had to be “alive” or “in existence” at the time of his death.  She was neither.

[79]    Although these cases would not be binding on Manitoba courts, it would appear that Manitoba intestacy law would not include posthumously conceived children. [50]

[80]    The implications of posthumous birth are not confined to wills and estates, but also involve insurance and other benefits.  For example, benefits under social security were raised and allowed in a case in terms of who is entitled to compensation as a dependant child or worker who dies while employed.  The most recent US cases have denied eligibility under benefit schemes.[51]

[81]    A very useful case for its thoughtful analysis is Woodward v. Commissioner of Social Security.[52] Twins were born two years after the death of their father, by means of AI with his banked sperm. The Massachusetts Supreme Judicial Court dealt with their claim for Social Security benefits.[53]

[82]    The court noted the extreme positions of the two sides in the case; the twins’ representative argued that once a biological link was proved, posthumously conceived children should always enjoy intestacy rights, while the Social Security stance was that such children should never be entitled.  To the court, neither position was tenable.

[83]    The relevant section of the state intestacy law merely said, “[p]posthumous children shall be considered as living at the death of their parent”[54] and had stood thus for 165 years.  It made no distinction between posthumous children conceived before the death and those conceived after.

[84]    The court, therefore, felt unconstrained by the wording of the statute and proceeded to conclude that posthumously conceived children should have intestacy rights, albeit with limitations.  Inclusion could not be automatic, based merely upon biological link, although proof of that connection would be the first requirement of a claimant. This would be to prevent fraudulent claims against an estate because the purpose of intestacy legislation is to pass wealth to spouses, common-law partners and blood relations.

[85]    The court stated that there are three important concerns to consider and balance:  the best interests of children, the orderly administration of estates and the reproductive rights of genetic parents.[55]

[86]    The New South Wales, Australia Law Reform Commission has recommended exclusion of posthumously conceived children from intestate succession rights.[56]  The purpose of such exclusion would be to eliminate delays and complexity in settling estates. 

[87]    In Florida a child conceived post-death is able to inherit from a deceased parent only if the parent provided for the child by will – showing intentionality and making sure that those administering the estate are aware of the potential issues.[57]  California has detailed rules to grant intestacy rights to posthumously conceived children involving written consent, written notice of the availability of the deceased’s material to the estate, and delay in distribution of the estate or portions of the estate.[58]

[88]    Solutions offered are to:
  • specifically exclude posthumously conceived children from taking under intestacy to create certainty.  However, in a situation where a deceased specifically leaves estate to a posthumous child, this solution doesn’t address policy needs or consistency and frustrates the intention of the testator;
  • allow posthumously conceived children to share in any portion of the undistributed estate.  This might, however, lead to hurried or overly delayed distribution to try to deal with the consequences of posthumous birth.  This could apply in intestacy and in will situations where the share of the unborn child is clear; or
  • detail provisions that allow a child to take whether on intestacy or under a will such as in the California approach.  This approach requires clear consent of the parent to parent and to the child being a beneficiary, a time limit for conception/birth, proof of birth and genetic connection to the deceased parent, notice to interested parties, and could allow some portion of the estate to be distributed while the rest is held.  This is to not prejudice the persons living who may require the financial support of the deceased and should not be penalized.
Dependants’ Relief:

[89]    The Manitoba Law Reform Commission project proposes a similar treatment for intestacy and for dependants’ relief rights of posthumously conceived children.[59]

[90]    In particular, the Law Reform Commission recommended that The Dependants Relief Act[60] be amended to include in the definition of “child”, a child conceived and born alive after the parent’s death, subject to the following conditions:
  • posthumously conceived children must be conceived within two years of the grant of probate or administration of estate;
  • notice in writing must be given  by the potential user, that gametic material is available for the purpose of posthumous conception to the personal representative of the estate and to persons whose interests in the estate may be affected, within six months of the grant of probate or administration of estate, subject to a judicial discretion to extend the notice period;
  • proof of biological link between a posthumously conceived child and the deceased parent must be provided;
  • there must be consent in writing, signed by the deceased parent, and dated, to the use of gametic material for the purpose of posthumous conception, and to the provision of dependants’ relief for any posthumously conceived child(ren);[61]
Wills and Estates some changes may be required to place a duty of due diligence on the testator and counsel to address the potential of posthumous children or to have the counsel inquire into the potential for the existence of such children so that there can be certainty of the testator’s intentions.

Vital Statistics – not only may Vital Statistics legislation need to ensure that it is aligned with the new parentage legislation, but also it may need to address the adequacy of information recording in birth registries.  Is information on use of AHR needed to ensure that the child can know to access the AHR Canada registry or to be able to try to track information on health status of donor or to start the process of tracking siblings or avoid intermarriage of related persons?

Assisted Human Reproduction Act (Canada) the legislation may need to deal with broader issues of record retention.  The AHR legislation currently has limited information requirements and capacities.  As AHR becomes a more prevalent form of creating a family, it may be necessary to reconsider what records are required to meet practitioner, donor, donee and child needs.  For example, if a child needs health information on whether a donor experienced disease problems post-donation, there is no current ability to trace this information.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018