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ART Children. Basic Analysis. Step 1: Is the resulting individual a “child” of the intestate parent? Step 2: If yes, does that child qualify as an heir?. Determination of Parents. 1. Pre-Death Reproduction Genetic material donor generally not a parent. Family Code § 160.702.

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Presentation Transcript
basic analysis
Basic Analysis
  • Step 1: Is the resulting individual a “child” of the intestate parent?
  • Step 2: If yes, does that child qualify as an heir?
determination of parents
Determination of Parents
  • 1. Pre-Death Reproduction
    • Genetic material donor generally not a parent. Family Code § 160.702.
    • Thus, who are the parents?
determination of parents1
Determination of Parents
  • 1. Pre-Death Reproduction
    • Mother is birth mother.
    • Father is mother’s husband if he:
      • a. Provides sperm, or
      • b. Both consent in writing, or
      • c. Both openly treat child as theirs.
      • Note: If mother is unmarried, child may have no father.
determination of parents2
Determination of Parents
  • 2. After-Divorce Reproduction
    • Ex-spouse whose material is used without consent is not a parent.
determination of parents3
Determination of Parents
  • 3. After-Death Reproduction
    • Deceased spouse whose material is used without consent is not a parent.
    • Note: Texas has no law regarding after death harvesting of sperm or eggs.
determination of parents4
Determination of Parents
  • 4. Gestational Agreements
    • Mother = Intended mother (not birth mother).
    • Father = Intended mother’s husband regardless of who contributed sperm.
ability of child to inherit from parent
Ability of child to inherit from parent
  • From mother – Probate Code § 42(a)
    • Child of “biological or adopted mother.”
    • What if child is not biologically related to mother, e.g., egg donation or gestational agreement?
ability of child to inherit from parent1
Ability of child to inherit from parent
  • From father– Probate Code § 42(b)
    • Refer to non-marital child discussion.
recommendations
Recommendations
  • 1. Both “parents” should adopt resulting “child.”
  • 2. Die testate with a will expressly explaining how to treat ART children.
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