IVF Kids as Will Beneficiaries
Whether a person dies with or without a will, a child of that person has the right to claim as a beneficiary of the estate. But what is a child? Does the definition only extend to natural children, or does it include artificially conceived children?
The rise of IVF kids
In 2013, Australia’s total fertility rate was 1.88 babies per woman, a decrease from the 2012 rate of 1.93 babies per woman, continuing the trend of the past five years.
What’s more, infertility is increasingly being overcome through advancements in treatment. The most recent national estimates indicate that 3.8% of all women who gave birth in Australia in 2011 received some form of assisted reproductive technology treatment.
With the number of IVF cases rising, it is interesting to know where the law stands on this issue.
The Status of Children Act 1974 (VIC) sets out provisions relating to how kids born through artificial insemination are dealt with in relation to property, marriage and death.
Women with a male partner
There is a rebuttable presumption under the Act that where a married woman, in accordance with the consent of her husband, has undergone a procedure as a result of which she has become pregnant, the husband (although perhaps not the biological father) shall be presumed for all purposes to have caused the pregnancy and be the father of any child born as a result of the pregnancy.
This means that any man, not being the woman’s husband, who produced semen used for the procedure shall for all purposes be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy.
Woman with a female partner
Likewise, there is a rebuttable presumption under the Act that where a woman, in accordance with the consent of her female partner, has undergone a procedure as a result of which she has become pregnant, the female partner shall be presumed for all purposes to be a legal parent of any child born as a result of the pregnancy.
It follows that in a will, references to a child or issue living at the death of any person will usually include artificially conceived children or issue.
When problems arise
The question then turns to what happens if the deceased has not given their consent? Do the rights of the deceased outweigh the rights of the posthumously conceived child?
During a person’s life, provided informed consent has been given, there are no legal or ethical impediments to extracting reproductive material.
However, while a person is incapacitated, or after a person’s death, the issue of consent is related to the person’s right to self-determination.
This was explored by the High Court of Australia in 1992.
Marion’s case
In Secretary, Department of Health and Community Services v J.W.G. and S.M.B.
(Marion’s Case) (1992) 175 CLR 218 the High Court left no doubt that appropriately obtained consent is required for any medical procedure on a patient, dead or alive.
Without such consent, the extraction of reproductive material is illegal.
In this case, 14-year-old Marion suffered from intellectual and physical disabilities, including severe deafness, epilepsy and other disorders.
Her parents sought an order from the Family Court of Australia authorising them to have Marion undergo a hysterectomy and removal of her ovaries. The effect of this procedure would be to prevent Marion from being able to have children.
In this case, the High Court ruled that while parents may consent to medical treatment for their children, this authority does not extend to treatment which is not in the child’s best interests.
The issue of self-determination was also explored in the 2000 case of MAW v Western Sydney Area Health Service [2000] NSWSC 358.
In this case, the court was asked to provide consent for the extraction of sperm from a comatose husband.
Justice O’Keefe refused the request, stating that as the child would never have the prospect of knowing its father, and should the circumstances of the child’s conception become known to the child and the community, it would not create a “happy situation”. Therefore, he concluded that the best interests of the child would not be served by being brought into existence in such a manner (at 43-44).
So if you are an IVF child, it’s likely that you have rights equal to any natural children under the terms of a parent’s will. However, issues relating to consent can muddy those waters, so it’s best to speak with a family lawyer to know exactly where you stand.