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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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ART Children

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Art children

ART Children


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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