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
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.