In re the Construction of Agreements among Martin B.
17 Misc.3d 198 (2007)
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Rule of Law:
Children conceived through in vitro fertilization using a deceased parent's cryopreserved genetic material may be considered 'issue' and 'descendants' for the purposes of a trust instrument, provided the deceased parent consented to the posthumous use of their genetic material and such an interpretation aligns with the grantor's intent.
Facts:
- On December 31, 1969, Martin B. (the grantor) executed seven trust agreements.
- The trust instruments gave trustees discretion to distribute principal to the grantor's 'issue' or 'descendants'.
- The grantor's son, James, after being diagnosed with Hodgkins lymphoma, deposited a sample of his semen at a laboratory for cryopreservation.
- James instructed that in the event of his death, his wife Nancy should have control over the cryopreserved semen.
- James died on January 13, 2001, without having any children.
- Three years after James's death, his wife Nancy underwent in vitro fertilization using his cryopreserved semen and gave birth to a son, James Mitchell, on October 15, 2004.
- Nancy used the same procedure again and gave birth to a second son, Warren, on August 14, 2006.
Procedural Posture:
- The trustees of the seven trust agreements filed an application for advice and direction in the Surrogate's Court.
- The application was uncontested.
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Issue:
Do the terms 'issue' and 'descendants' within trust instruments include children conceived by in vitro fertilization with the cryopreserved semen of the grantor's son several years after the son's death?
Opinions:
Majority - Renee R. Roth, S.
Yes, for the purposes of these trusts, the terms 'issue' and 'descendants' include the children conceived posthumously. In the absence of specific statutory guidance, a court may determine that children born of new biotechnology with the consent of their deceased parent are entitled to the same rights as a natural child under a governing instrument. The court's reasoning relied on several factors: the public policy evolution recognizing children of assisted reproduction (e.g., Domestic Relations Law § 73), analogous statutes in other jurisdictions and the Uniform Parentage Act which tend to recognize such children where parental consent exists, and the Restatement (Third) of Property's position favoring inclusion. The court concluded that James's consent was clear, and a sympathetic reading of the grantor's overall dispositive scheme—to benefit his bloodline—warranted the conclusion that he intended all members of his bloodline, regardless of the circumstances of their conception, to be included.
Analysis:
This decision is significant as a case of first impression in New York addressing the inheritance rights of posthumously conceived children under a trust. It demonstrates a court's willingness to interpret traditional legal terms like 'issue' and 'descendants' expansively to adapt to advances in reproductive technology. By focusing on the deceased parent's consent and the grantor's probable intent, the ruling establishes a persuasive precedent for future cases involving donative instruments that are silent on the status of children born via assisted reproduction. This case signals that courts may fill legislative gaps by looking to public policy, analogous law, and scholarly sources to ensure that donative instruments are interpreted in a way that reflects modern familial realities.
