Estate and Elder Law

Pre-Embryos: Are They Property Subject to Probate?

In the most recent edition of Probate & Property, a publication of the Real Property, Trust & Estate Law Section of the American Bar Association, Baylor Law School Associate Professor Bridget M. Fuselier penned a thought-provoking article entitled, "Pre-embryos in Probate: Property, Person or Something Else?"  The article addresses the legal and emotional issues implicated by artificial reproductive technology where neither of the two gamete providers is a "donor."

Fuselier posits that property law is a good starting point for addressing the determination of what happens to pre-embryos upon the death of one of the gamete providers. Can that individual direct the disposition of the pre-embryo by virtue of a provision in his or her will? What about the rights of the surviving gamete provider?  And what can the survivor do with the pre-embryo if the decedent's wishes in that regard differed from that of the survivor's?

Fuselier's analysis leads her to the conclusion that "establishing a modified tenancy by the entirety would do the best job of addressing potential problems to come." She proposes that tenancy by the entirety be extended to concurrent ownership outside the martial union solely in the context of pre-embryos. Further, she advises that the law should ensure non-severability of the survivorship component and should prohibit partition or other lifetime severance. Finally, she suggests that pre-embryos not be defined as "property" under probate code definitions to prevent transfer on the death of the survivor.

Fuselier's well-written essay provides an excellent suggested solution to the thorny dilemma that arises from our expanded technology in the reproductive realm, and I highly recommend a read of this article if you are a member of the ABA RPTE.