JSGC's Final Report on Assisted Reproductive Technologies

In May, 2008, the Pennsylvania Joint State Government Commission, through its Subcommittee on Assisted Reproductive Technologies, issued its final study & complete recommendation report entitled "The Proposed Assisted Reproductive Technologies Act, 2008" (PDF, 77 pages).

The ART Subcommittee functioned from April 2005, until May 2008. It was comprised of representatives from:

• JSGC's Advisory Committee on Adoption Law
• JSGC's Advisory Committee on Decedents’ Estates Laws
• JSGC's Advisory Committee on Domestic Relations Law
• Experienced private practitioners familiar with "assisted reproductive technologies"
• Consultants from the Pennsylvania Department of Health
  

These members included: Lawrence A. Kalikow, Esq. (Chair), Craig B. Bluestein, Esq., Frank P. Cervone, Esq., Mitchell E. Chadrow, Esq., Lisa W. Clark, Esq., Mary Cushing Doherty, Esq., Neil E. Hendershot, Esq., Albert Momjian, Esq., and Prof. Robert Rains.

For two years, the Subcommittee reviewed the proposed model Uniform Parentage Act (2002 Version) approved by the National Conference of Commissioners on Uniform State Laws), current Pennsylvania statutes, Pennsylvania court decisions (which further developed even while under study), present Pennsylvania court practices in counties, and current statewide procedures of the Department of Health, Vital Statistics.

Its Initial Report, issued in May 2007, proposed and explained a partial statutory framework for assisted reproductive technologies (ART).

An ART statute would be placed into Chapter 59 of the Domestic Relations Code (Title 23 of PA Consolidated Statutes), as Subchapters A, B, & C. It would cover "gestational agreements", also known as "surrogacy arrangements". See: PA EE&F Law Blog posting "Assisted Reproductive Tech Act Proposed in PA" (05/27/07).

But more work remained, as outlined in that Initial Report:

• The Subcommittee recommended that the Pennsylvania Supreme Court consider conforming Orphans’ Court rules to the provisions of the proposed new 23 Pa.C.S. Chapter 59 (if adopted into law).
• The Subcommittee further recommended review of the report issued by the President’s Council on Bioethics, entitled Reproduction and Responsibility: The Regulation of New Biotechnologies (March 2004).
• The Subcommittee announced its intention to continue studying provisions relating to children of assisted reproduction and to records, which would be added as Subchapters D & E of the proposed act in a subsequent report.
  

After concluding its additional work in Spring 2008, the Subcommittee published its entire proposed Assisted Reproductive Technologies Act (Subchapters A-E) Report, with a recommended new statutory Chapter, which begins at Page 23 of the Final Report.

This report, therefore, reflects the latest recommendations of the subcommittee -- a fully integrated proposed Assisted Reproductive Technologies Act.

As was the case in the May 2007 report, notes and comments follow the statutory provisions. Official comments may be used to construe a statute and determine the intent of the General Assembly.

This report also contains a summary of the statutory recommendations and a detailed table of contents for the statutory provisions.

Following the proposed statutory provisions are conforming amendments to §§ 711 and 713 of the Probate, Estates and Fiduciaries Code * * * and transitional language (applicability and effective date provisions). * * *

Thus, its Final Report superseded its Initial Report, expanding and further annotating a complete proposal for an Assisted Reproductive Technologies Act for Pennsylvania.

The Final Report addresses some issues affecting the estate & trust area, where inheritance or beneficiary rights might arise in the context of births provided by assisted reproductive technology. See: Proposed Section 5932 ("Legal parentage") and Section 5935 ("Parental status of deceased individual").

The Final Report's summary regarding the "Parental status of a deceased individual" (Pages 11 & 12), explains one interface between the Domestic Relations law and the Probate Code, and offers a customized approach for resolution:

A decedent is not a parent of a child conceived as a result of assisted reproduction after the decedent’s death unless consent is given pursuant to § 5935. In addition, for the decedent to be a parent of the child in this case, the placement of eggs, sperm or embryos must occur within 18 months of the decedent’s death and the decedent’s surviving spouse must file the consent with the clerk of the court and serve notice on the executor or administrator within six months after the decedent’s death.

Section 5935 could cause a result that is contrary to the decedent’s intent, as in the case of an individual who intends the embryos to be implanted but who then dies unexpectedly before consenting in a dated, signed writing.

Absent written consent, the death of an individual whose genetic material is subsequently used either in conceiving an embryo or in implanting an already existing embryo into a womb ends the potential legal parenthood of the deceased. Section 5935 is designed primarily to avoid the problems of intestate succession which could arise if the posthumous use of a person's genetic material leads to the deceased being determined to be a parent. Of course, an individual who wants to explicitly provide for such children in his or her will may do so.

Section 5935 eliminates the possibility of having a deceased individual’s estate open indefinitely. It balances the interest of effectuating the decedent’s intent to be a parent (and have an heir) and the practical need to close the decedent’s estate after a reasonable amount of time.

The section is to be broadly construed to effectuate the purposes of the Probate, Estates and Fiduciaries Code, including provisions concerning inheritance, succession and notice requirements.

Although Subchapter D contemplates that a woman who may be the genetic mother of the child will give birth to the child, a situation may occur where that is not the case, thereby implicating § 5935.

For example, the surviving husband of a deceased woman may use his deceased wife’s eggs to create a child. If the requirements of § 5935 are satisfied and the surviving husband uses his deceased wife’s eggs and enters into an agreement regarding assisted reproduction with a carrier, who will carry the child, his deceased wife would be the parent of the resulting child. In this circumstance, parentage would be determined under § 5904(b), since neither § 5932(b) nor Subchapters B or C are instructive in resolving the parentage issues regarding the mother of the child. To wit, § 5932(b) provides that the woman giving birth to a child is a legal parent of the child, and Subchapters B and C concern gestational agreements, a term specifically defined in § 5902.

In this case, the agreement executed by the surviving husband and the carrier would not be a “gestational agreement” as defined in § 5902 because the deceased wife would not have executed the agreement.

In addition, in this case, the Division of Vital Records of the Department of Health would need some type of order determining that the deceased wife, instead of the carrier, is to be listed as the mother of the child. * * *

The proposed legislation would provide guidance on these complex substantive and procedural issues that develop in the context of new, more frequently-employed medical technologies resulting in planned births.

As one who served on the Subcommittee, I now encourage careful consideration of its Final Report by the Legislature regarding these important matters.