Parenthood, genes, and gametes: The family law and trusts and estates perspectives

I. INTRODUCTION

gametes are subject to property-based or custody-based rules.4 Many trusts and estates teachers do include the Hecht v. Superior Court5 case, which involved a man's attempts to will his sperm to his girlfriend, Deborah Hecht.6 Based on course content, this is a live issue in both types of courses.

This Article covers a variety of situations involving family law, trusts and estates, and new reproductive technologies: disposition of zygotes at divorce or death and disposition of sperm and eggs upon divorce or death. Although there are certainly grounds for distinguishing eggs and sperm from zygotes-zygotes are closer to potential human life and require the union of two gmetes7--in the context of reproductive technology, both gametes and zygotes (Gs & Zs) provide the hope of producing a child. Consequently, they are not discussed seperately, unless the differences become relevant.

There are two overlapping issues in each discipline. First, who makes decisions about the use of gametic material? Can the partner seeking procreation use gametic material over the objections of the other partner? The objecting gamete provider could be either a divorcing spouse or a dead individual who has indicated opposition in a testamentary document, or who may have left no instructions.

spouses wish to use the gametic material, then what are the rights of the other spouse or the decedent's estate? Are courts likely to allow single parenting in either context? And, if notwithstanding one partner's objections, the other partner produces a child, then is the objecting partner the legal parent with the various attendant obligations? This second question has implications in family law for child support,9 custody, and visitation, and in trusts and estates law for inheritance issues, such as class gifts to children/issue, and the identification of "children" under intestacy statutes.10

The overlapping issues concern the disposition of this material once there has been a change in situation because the relationship has dissolved through separation of the parties11 or death. In these contexts, there may be no explicit direction; one party wants the material, the other wants it destroyed-at death, one family member may want the material and other family members may oppose that desire. Both areas are also concerned with the parent-child relationship-the identity of the parents is the initial decision, and from this determination flows issues of child support and custody in family law12 and inheritance rights in the estates law context. Finally, all issues center on the importance of genetic connection: what rights are retained by an individual who produces genetic material to be used in alternative reproduction, and does use of that genetic material invariably create legal obligations?

to the intent of the parties.13 In balancing the constitutional right to procreate and the right not to procreate, divorce courts have almost uniformly privileged the right not to procreate.14 In the trusts and estates area, most of the cases concern disposition of sperm, and the courts typically attempt to ascertain the testator's intent.15 in both contexts, as this Article will show, courts, as well as legislatures and scholarly commentary, emphasize biology and genetic connection.

sperm may not result in the vesting of inheritance rights in any resulting child.18 By contrast, in the divorce context, courts have pointed to the specter of a divorced spouse's genetic child existing without that spouse's consent; they have not severed the link between genetic and legal parenthood.19

II. CURRENT APPROACHES TO MANDATORY PARENTHOOD: CONTRACTUAL, LEGISLATIVE, AND JUDICIAL SOLUTIONS

Disputes over gametes can be resolved through either private agreements or public regulation by courts or legislatures.20 The providers may draft a document setting out their intentions (e.g., a contract or a will) with respect to disposing of gametic material in case of divorce or death, but states may enact legislation establishing either override rules that mandate certain outcomes, such as a prohibition on destruction of the material, or default rules which control in the absence of an expression of contrary intent.21 The courts may also, pursuant to common law or constitutional law, guide the law. This section briefly discusses private contracting, judicial decision making, and legislative actions concerning the disposition of gametic material.

A. Agreements

situations would be if the parties explicitly agreed on what to do in advance of divorce or death or if the sperm/egg bank has explicit procedures. Such an agreement, required by many in vitro fertilizations (IVF) centers and sperm banks, would address the multiple dispositional possibilities. For example, Fertility Options mandates a "contractual agreement between you and your fertility assistant. . . before any reproductive procedures begin."22

contracting about reproduction provide additional complexities and stress.

B. Statutory Solutions

Where the parties have not addressed the issues themselves, legislation can provide default rules. Even where the parties have decided what to do, statutes may also serve an override function.

1. Sperm Providers

Indeed, a recent Illinois case held that a boyfriend who had encouraged and financially supported his girlfriend's use of provider sperm was not the father of the resulting children because he had not consented in writing.28

Where a man makes a sperm deposit that he intends to use later, the sperm banks themselves establish the terms of use.29 In addition, the man may provide other expressions of intent such as a will or other signed statement. In the absence of such documentation, it may be unclear whether the man is simply banking sperm with the intent of making a reproductive decision in the future, or is banking sperm with the explicit intent that this material be used to create children without any further actions from him.30 Sperm may also be extracted from a dead or comatose man, with or without his explicit permission either to the extraction or to the support of any resulting children.31

2. Egg Providers

concerning the actual sale of oocytes.34 Similarly, only a small number of states have regulated legal parenthood through the use of egg provision.

3. Zygote Provision

seemingly mandatory nature of such an agreement, in those situations where the parties have not agreed in advance, they have joint authority, which creates a highly problematic situation. While Texas does not address "ownership" issues, its statute allows a spouse to withdraw consent before the zygotes have been placed.38

temporary guardian until adoptive implantation can occur.42 In Louisiana, then, an agreement may not direct zygote disposition other than implantation. Other options, such as donation for research or destruction, are prohibited. Under this approach, frozen zygotes cannot be destroyed because this is destroying life.43 The constitutionality of this law is questionable in light of current abortion jurisprudence.44 In Australia, zygotes must be freed for surrogate implantation and cannot be destroyed.45

considered legislation that would require medical facilities that perform IVF and zygote cryopreservation to obtain from each couple, prior to their undergoing these procedures, information regarding what the couples would like done with any cryopreserved zygotes in case of death or divorce; the couples' statements, however, are all part of the informed consent process and do not stand alone as separate agreements.

C. Judicial Solutions

Courts have developed a variety of approaches to deal with these issues in the absence of legislative guidance, and, somewhat surprisingly, even in the presence of contracts. In both sets of cases, courts are concerned with the issue of whether someone should be coerced into parenthood. Similarly, in both family law and estates law, if there are differing intents, then courts generally seem to find in favor of the person who does not want to procreate, regardless of the existence of prior agreements or statements of intent.48

Initially, the first group of cases supported the enforcement of express agreements relating to zygote disposition. In Davis v. Davis,49 although there was no contract, the court indicated its preference for an enforceable contract over a seeming failure to anticipate the contingency of divorce.50 In Kass v. Kass,51 the contract was not for procreation, but for donation of the prezygotes to research.52

their potential to become children, so the "essential dispute here [was not over property but] . . . whether the parties [would] become parents."55 The court concluded that ordinarily, the party seeking to avoid parenthood should prevail.56 In Kass, the contract provided:

In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage....

The possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes. THIS STATEMENT OF DISPOSITION MAY BE CHANGED ONLY BY OUR SIGNING ANOTHER STATEMENT OF DISPOSITION WHICH IS FILED WITH THE IVF PROGRAM

. . . .

disposition of our pre-zygotes and direct the IVF program to (choose one):

. . . .

(b) Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program.57

Although the wife subsequently expressed her opposition to destruction of the zygotes or release to the IVF program, the court upheld the contract, analogizing the parties' choice at death to the intended choice upon divorce.58

Nonetheless, relying on public policy considerations, courts in later cases refused to enforce prior express and unambiguous contracts that would compel one donor to become a parent against his or her will.59 The underlying theme in these cases is judicial respect for the right not to procreate, regardless of the potential existence of a contract to the contrary.

this agreement, holding that it was a violation of public policy to force someone to become a parent.63 This policy consideration trumped the express terms of the agreement.64 The court concluded, "we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement."65

Similarly, in J.B. v. M.B., a New Jersey state court agreed not to enforce the "alleged contract" because it was a contract to procreate.66 The agreement provided that parties would relinquish all control of their gametic material to the IVF program upon divorce (unless a court order provided otherwise) or upon death of both of the parties (unless a will provided otherwise).67 Unlike most of the other cases, it was the husband who wanted to enforce the agreement, seeking to preserve the zygotes for his future use or for donation to an infertile couple.68 The wife opposed any use of the zygotes.69 The court refused even to let the issue of whether the wife had earlier agreed to donate unused zygotes to go to trial because the husband's right to procreate remained unaffected, whereas implanting the zygote would infringe upon the wife's ability not to procreate.70 The court agreed with the rationale of A.Z. and concluded "that a contract to procreate is contrary to New Jersey public policy and is unenforceable."71

and an egg provided by another woman.73 The wife sought enforcement of an implied contract allegedly constructed by the couple's "plan" to parent other children evidenced by their prior decision to preserve the zygotes created by a surrogate egg donor.74 The contract provided that upon death of both parents, the zygotes would be disposed of, but said nothing about divorce.75 The contract stated that a court could make a decision upon the parties' petition.76 The court ruled in favor of the husband who did not want to procreate or become primary parent, but who instead wanted to donate pre-embryos to someone else.77 The court followed Davis, holding that they would not "read into the contracts an implied promise that [the husband] would continue with the parties' family planning after the dissolution."78 "Absent any evidence that [the husband] 'intended to pursue reproduction outside the ... marital relationship' with [the wife]," the court was "unwilling to create such an obligation."79 The court does say in dicta that "at least one court, because of public policy concerns, has said it would not enforce even an unambiguous agreement 'that would compel one donor to become a parent against his or her will.80

It is evident, however, that courts recognized the tensions in their decisions between contract enforcement and respect for the right not to procreate. As the New Jersey court explained in J.B. v. M.B., "[o]ur conclusion is not inconsistent with Davis ... or Kass . . .because neither decision enforced a contract to procreate, despite expansive dicta regarding the enforceability of agreements between progenitors."83 Nonetheless, courts have overridden clearly stated intent, in support of a public policy that privileges one party's right not to procreate over the other party's right to procreate.84

additional actions when alive), and his competence, questioning whether he was unduly influenced by the girlfriend.90

Should [his girlfriend] be allowed to obtain Hall's sperm deposits during the pendency of this action, one or more embryos could well come into existence. Depending on the length of time the matter requires prior to final conclusion, the possible development of human beings is such a serious consequence that the irreparable nature of the risk at issue is clear. The emotional damage to the decedent's mother and Executrix should the donation prove to have been illegally obtained and children sired against the wishes of her dead son is obvious and cannot be compensated adequately. Further, the determination of the validity of the act of donation should be made without the influence of the existence of embryos or an actual pregnancy.91

While there are some factual distinctions between the two cases-one could argue that Kane's intentions were unambiguous -it is unclear whether the facts provide an adequate explanation for the differing results in the two cases. It appears, instead, that the judges used two different approaches in deciding whether to permit the posthumous use of a boyfriend's sperm.

procreate.92

III. WHO ARE THE PARENTS?

the result of a case recently decided by the Massachusetts Supreme Court. In Woodward v. Commissioner of Social Security,95 the husband developed leukemia; prior to undergoing treatment, he deposited sperm with a sperm bank.96 After his death, his wife used the sperm to become pregnant; after the child's birth, she obtained a paternity order, and sued for Social Security benefits for the child.97 The court held that, while it was possible for a man to have posthumous heirs, a child could not inherit from a deceased father unless he had affirmatively consented to posthumous reproduction and had agreed to support any resulting children.98 Thus, proof that the child was genetically related to the deceased husband was insufficient; either the mother or the resulting child must also affirmatively show the father's consent to reproduction as well as to the attendant support obligations.99

These laws recognize the possibility of separating genetic parenthood from legal parenthood after the death of the gamete provider.

There is, however, case law to the contrary. In Estate of Kolacy,101 children born eighteen months after their father's death102 were held to be his heirs under New Jersey law.103 The only relevant New Jersey probate provisions dealt with conceptions before death and the relevant parentage act dealt only with insemination not by a husband.104 The court reasoned that, given his intent to have a child, the twins born after his death were his heirs.105 His intent was established through the wife's assertion "that her husband unequivocally expressed his desire that she use his stored sperm after his death."106

Where zygotes are donated, there are a few states that have laws directing that the intending parents, not the providing parents, are in fact the parents of any resulting child. A Texas statute provides, "[i]f a donor oocyte that has been fertilized with her husband's sperm implants in a wife's uterus, a resulting child is not the child of the donor of the oocyte."109

IV. PRIVACY AND BIOLOGY

Any solution to the disposition of G and Z material must recognize the "nature" of the material. As the Davis court so eloquently explained about zygotes, they have attributes of property and personhood;110 sperm and eggs similarly have the capacity to develop into people. Courts and statutes that preclude use of this material by focusing on the risks of having genetically, but emotionally, unrelated children are recognizing the capacity for personhood rather than the property aspect of this genetic material; yet they are also struggling with the tensions between the rights to procreate and not to procreate.

A. Biology

at the expense of biologically-related children with whom they are no longer living.121 Mere genes, while powerful, are not sufficient in these situations.

Moreover, men and women may value genetic connection differently. Mary Mahowald studied whether gender affected a preference for gestational or genetic parenthood.122 When she asked men and women whether they would prefer that the female partner be genetically or gestationally related to a resulting child, she found that almost 75% of the men preferred genetic parenthood to gestational parenthood, while less than 50% of the women chose this option.123 Assumptions about the significance of genetic connection may turn out to be gendered.124 To base legal parenthood simply on genetic contribution, or to allow a gamete provider to veto possible parenthood for another person, relies too strongly on the presumptive biological connection based solely on genes.125

contributions, however, in every situation, should not be equated with parenthood.126

B. Privacy

We lack a coherent theoretical framework for addressing issues involving human gametic material. This material differs from other body parts because of its capacity to create human life, rather than sustain it, and thus should be treated sui generis. Existing legal analyses rely on the property/privacy framework, attempting to categorize the material as protected by a property or privacy or "quasi-property" framework.127 Professor Rhadika Rao argues that privacy protects a person's identity, while property "protects the autonomy of an owner over the object of ownership."128 Professor Rao suggests that the right of privacy protects individuals' relationships to their frozen zygotes where the individuals attempt to establish a personal relationship with the zygotes, while the law of property applies more appropriately where individuals want to sell frozen zygotes because they have no personal relationship to the zygotes.129 This analysis provides useful insights into the sale of gametic material and starts to uncouple genetic connection from parenthood; mere contribution to the creation of a zygote does not necessarily translate into parental rights and obligations.

interests of other children and relatives. With respect to disputed eggs, sperm, and zygotes, however, where there is a "personal relationship" with the material, a privacy analysis does not determine who wins and controls the ultimate outcome. One can identify conflicting privacy interests in the right to procreate versus the right not to procreate, and the process of definition clarifies the impact of the decision, but does not decide which right prevails. To decide, as the New Jersey Supreme Court did in J.B., that a woman's right not to procreate would be "irrevocably extinguished" if a surrogate carried zygotes created through her gametic material, confuses biology, privacy, and parenthood.130

The whole notion of privacy-the right to be let alone-has developed as protection for individuals from state interference. The term "privacy" includes a series of different "rights," some of which have been recognized by the federal constitution, some of which have developed in other contexts.131 Jeffrey Rosen argues that, in the reproductive rights area, the Supreme Court has labeled as privacy what is better conceived of as an individual's right to make reproductive decisions, in contrast to a "more focused vision of privacy that has to do with our ability to control the conditions under which we make different aspects of ourselves accessible to others."132 Thus, the objection against allowing procreation depends on a person's right to control what comes from his or her body.

overreaching and against undue state interference with fundamental personal decisions and beliefs. As constitutional law scholar Robin West has explained:

We are concerned... with the freedom to be ourselves within some defined sphere-the freedom to make our own decisions, think our own thoughts, worship our own deities, and choose our own way of life within some sphere the boundaries of which admittedly are not clearly discernible but which are absolutely inviolable once drawn.133

woman's body; she is the one who must carry the child and then give birth.

This resolution, in favor of the person whose "bodily integrity" is more compromised, is not applicable in the context of reproductive technology. While it is clear that neither partner can force the other to produce gametic material, nor to gestate a zygote, once the partners have produced egg and sperm, there is no further need to protect physical integrity. A solution would respect both rights, but redefine the meaning of the right not to procreate such that procreation need not result in legal parenthood.

C. Two-Parent Families

fosters two parents for every child, regardless of the parents' marital status; thus, for single women who choose artificial insemination by donor, Professor Garrison believes that the applicable paternity rules should be the same as for conception by sexual means, and the "donor" should be deemed the legal father.141 The newly revised UPA uses the two-parent heterosexual family as the model to which all other families should conform.2 For example, in its discussion of the validity of gestational agreements, the UPA requires that the intending parents be married to each other,143 thereby precluding same-sex partners or single individuals from entering into binding surrogacy contracts. In cases involving both traditional and gestational surrogacy arrangements, courts have carefully tried to designate one mother and one father for each child.144

When the partners have divorced or one has died, allowing one partner to procreate results in a single-parent family. Because many states encourage two-parent families, courts may use public policy to justify their conclusions precluding procreation with frozen material.

V. SOLUTIONS

should exist between provision of gametic material and parenthood? Does contribution of gametic material provide a veto power over another person's right to procreate?

Sperm and eggs, because they require the contribution of only one person, should probably remain under that person's control in the event of divorce. When the sperm or egg provider dies, however, some indicia of intent to allow posthumous procreation should exist.145 Zygotes, because they require the contribution of two people, need a distinct set of rules that, in turn, may provide for different default or override rules in the event of divorce or death. This section focuses primarily on zygotes because they raise the more complex issues.

A. Existing Proposals

The general approach of the ABA's model statute is to preclude inheritance unless the zygote transfer has occurred prior to the death of the intending parent, or the deceased parent has executed a will consenting to inheritance.149 The statute also provides that if a deceased zygote creator has consented to posthumous use, then a child must be born within three years of the death of the intending parent for that child to be an heir.150 It also says, with respect to zygote agreements, that there must be binding written agreements as to the use and disposition of the zygotes in the event of divorce, death, or other change in circumstances. It then further provides that if there is a subsequent disagreement and a divorce, then the parent who wants to use the zygote to create a child, if such a situation was contemplated under the agreement, may do so, but without any parental rights granted to the non-consenting partner.151

party to proceed unilaterally against the objections of the other person. A counterproposal would say that, if one party objects, regardless of what the prior agreement says, then that party's right not to procreate should control. Here, the argument is that someone should not be forced to become a genetic parent regardless of legal duties because there is a right not to procreate that overrides any prior contract.152 People should be free to change their minds at any time when it comes to proceeding with procreation, as well as be allowed to withdraw consent to procreation, despite an earlier agreement, when circumstances change.153 Given that zygotes are created within the context of a relationship, once that relationship dissolves, the zygotes should similarly be destroyed.

The influential New York State Task Force suggested that couples have "joint decision-making" authority over the disposition of zygotes created with gametic material from both partners, although it suggests a different authority structure for zygotes created with some donated material.154 This solution, however, may result in deadlock. It privileges the partner who wants to destroy the zygotes; that partner can oppose all solutions but zygote destruction, thereby resulting in that person's right not to procreate trumping the other person's desire to procreate or enable others to do so. Again, this has echoes of genetic essentialism.

B. Respecting Intent and Procreation

1. Agreement Already in Place

Ultimately, it is possible to respect the intent 155 of both parties, whether the provider of the contested gametic material is alive or dead. This does not have to be done, however, at the expense of a surviving partner who wants to procreate. If an agreement provides for procreative uses of gametic material, and, subsequently, upon divorce or death, one partner (the "procreation-- seeking partner") wants to proceed, then the other partner (the "procreation-blocking partner") should not be able to block completely this use through court action or execution of a testamentary document. That is, if one partner-either a divorced spouse or a surviving partner-wants to use another person's gametic material which was provided when the other partner was alive or married, and it is clear that the other partner opposes (or would have opposed) this use, then the procreating-seeking partner himself or herself should be able to use the material. To protect the procreation-blocking partner, however, that person should have no parental rights or obligations; for example, that partner would have no custody, visitation, or support rights, nor would any resulting child be able to inherit from that partner. The procreation-blocking partner should simply not be designated a "legal parent." 156

living in an environment controlled by strangers.157

One response is to provide that, in this particular situation, one partner's genetic contribution does not make that partner the legal parent, who is then responsible for child support.158 This response does not, however, address the underlying fear concerning use of genetic material. On the other hand, fear of a genetically related child at every corner places too much emphasis on genetics. Moreover, it ignores the reality of adoption-where the same situation occurs, quite frequently with both biological parents maintaining no legal connection to the child-and of other situations where a child has been created without one parent's consent.159 While this fear is deeply rooted,160 it should not necessarily prevent use of zygotes by the procreation-seeking partner.

course, like live children-although one can imagine either of the following scenarios: a court determining the best interests of the embryos, or a divorce settlement that says "honey, you take the kids, I get the embryos."

Where two partners have consented to the creation of a zygote, regardless of whose gametic material is included, the same principles applicable to a zygote composed of both parties' gametic material should control the disposition. There appears to be a legal presumption that the person who did not contribute gametic material should have a "lesser stake" in the ultimate disposition when the parties disagree.161 This again privileges genetic connection over the intent to create the zygote, and the actions undertaken to produce it. These actions include not just the costs of zygote production, but also the time and emotional effort involved in the process.162 While intent should not be the definitive principle to resolve all such disputes,163 neither should biology. The legal focus should be on the intent both at the time of creation of the material and at the time of dispute, without regard to biological contribution.

C. The Use of Agreements

intimate relationships, these contracts must be subject to limited override rules with externally imposed norms, and providers must be able to withdraw consent prior to the actual use of the G & Z material.166

Within family law, many scholars have noted a trend towards increasing privatization and autonomy. Individuals within family law have had increasing authority to define their own relationships, a move toward more contracting in the private life of the family.167 There are many areas in which private contracting has replaced more public ordering, particularly with respect to the intimate relationships between adults. The movement towards freedom of contract represents the shift in family law towards recognition of the rights of individuals who choose to form families, rather than the rights that flow from a family status.

agreements, these agreements occur against a background of publicly-defined default rules. Within trusts and estates law, the freedom to will one's property is subject to a spousal elective share, which entitles a surviving spouse to take property regardless of what a will provides.169 Thus, within both trusts and estates and family law, intent is qualified by state-imposed norms.

Contracts relating to zygote creation should be encouraged because they cause parties to the agreement to review carefully their options. If, however, upon divorce or death of one of the parties, one party changes his or her mind, then the presumption of enforceability can be rebutted,170 with override rules coming into play. For example, while all provisions of prenuptial contracts are generally enforced, courts will not enforce any child custody arrangements in these agreements. While use of gametic material is different from child custody because it does not implicate the state's role as parens patriae, the exemption of child custody from generally enforceable provisions does show the possibility of overriding particular sections; moreover, the use of gametic material implicates a right to procreate, a state-protected status. Because of the significance of this right, the state may need to step in.

situation and the difficulty of imagining divorce or death, the chosen disposition should be subject to rebuttal upon a showing of substantial injustice to change the agreement. While, of course, it was two people together who initially decided to create a child, and that agreement has subsequently broken apart, neither should have veto power over the other's actions as provided in the agreement. Instead, where the agreement contemplates procreation postdivorce or death, then the balancing of equities lies in favor of the person who wishes to procreate; that person can do so, with adequate protection and minimal cost to the other. By contrast, preventing procreation may have devastating emotional and financial consequences to the procreation-seeking partner.173

contract was signed.177 When it comes to intrafamilial contracting, however, this may be the inappropriate time for evaluation; couples are notoriously bad at anticipating divorce, 178 and individuals are similarly bad at planning for their own incapacity and death.

D. Legal Parenthood

have received extensive visitation over the objections of the biological mother and her partner,183 based on analogizing the parent-child relationship to existing familial forms.

In the case of death, legislatures have appropriately begun to separate genetics from the status of legal parent, providing limits on the length of time after a provider's death during which the decedent can be deemed a parent. Even if a decedent's sperm was used for the insemination, he is not necessarily the legal father. The Massachusetts Supreme Court has required that there be credible evidence of specific intent for both reproduction and subsequent child support before deeming a deceased sperm provider the legal parent.184 While the need for a showing of intent beyond the mere banking of sperm or eggs should be required, requiring written documentation should not be mandatory. A more flexible standard that would admit oral declarations of intent should be utilized.185 On the other hand, it is critical for all gamete banks to mandate that depositors fill out detailed agreements setting out their decisions on the ultimate disposal of the material in the event of death or other circumstances.

agreement to allow one spouse to use the zygotes upon divorce, even if the other party objects, the use should be allowed. 186 On the other hand, the objecting spouse, just as in the case of a dead partner, should not be deemed the legal parent,' 87 subject to all of the responsibilities and privileges traditionally accorded to parenthood. If legal and genetic parenthood can be separated for a dead partner, then such a separation should be possible as well while the partner is still living.

VI. CONCLUSION

to support them is not a "substantial hardship." To ensure legal certainty, the same procedures should apply when the relationship dissolves or when one party dies. Finally, in the absence of an agreement or statements to the contrary, the presumption should be in favor of destroying the gametes or zygotes.

NAOMI R. CAHN*

Professor of Law, George Washington University Law School. I thank June Carbone and Joan Hollinger for comments, Sonia Suter and Bob Tuttle for conversations and encouragement, and Corey Shapiro, Trisha Smith, Michelle Wu, and Pamela Genise for excellent research assistance. I would also like to thank Professor Ronald Chester. This talk was originally presented at the Association of American Law Schools Workshop on Defining the Family in the Millennium, March, 2001.

Copyright University of Memphis Spring 2002
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