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Understanding Heirship and Parentage in ART Children: Key Steps and Considerations

This guide outlines the procedures for determining whether an individual conceived through assisted reproductive technology (ART) is considered a "child" of the intestate parent, and if they qualify as heirs. It highlights the legal distinctions based on pre-death and after-death reproduction, consent requirements, and gestational agreements. Special attention is given to the implications for inheritance rights from both biological and adoptive parents. Recommendations suggest adoption for ART children and creating a will that clearly defines heirship for these cases.

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Understanding Heirship and Parentage in ART Children: Key Steps and Considerations

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  1. ART Children

  2. 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?

  3. Determination of Parents • 1. Pre-Death Reproduction • Genetic material donor generally not a parent. Family Code § 160.702. • Thus, who are the parents?

  4. 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.

  5. Determination of Parents • 2. After-Divorce Reproduction • Ex-spouse whose material is used without consent is not a parent.

  6. 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.

  7. Determination of Parents • 4. Gestational Agreements • Mother = Intended mother (not birth mother). • Father = Intended mother’s husband regardless of who contributed sperm.

  8. 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?

  9. Ability of child to inherit from parent • From father– Probate Code § 42(b) • Refer to non-marital child discussion.

  10. 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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