Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Sunday, September 14, 2014

Article on Defining Parentage for Lenders of Genetic Material

Lynda Wray BlackLynda Wray Black (University of Memphis - Cecil C. Humphreys School of Law) recently published an article entitled, The Birth of a Parent: Defining Parentage for Lenders of Genetic Material, Nebraska Law Review, Vol. 92, 2014. Provided below is the abstract from SSRN:

With the advances in assisted reproductive technology, the scholarly quest for an all-inclusive legal definition of parentage has proliferated. All too often this quest becomes muddled in Constitutional tangles, in shifting mores, in quagmires of evolving and inconsistent legal parameters on what constitutes a “family”, and in the perceived need to reconcile conflicting state laws governing marriage, adoption and surrogacy contracts. This article suggests a return to the basics. Parents are born with the birth of a child. Notwithstanding the scientific breakthroughs in reproductive technology and the more inclusive modern understanding of the family unit, every child begins with two (and only two) suppliers of genetic material and one (and only one) gestational carrier. Thus, the only logically clear starting point for a legal definition of parentage begins with these three claim-holders to parentage. Once the examination of the concept of parentage is disentangled from the complications of related, but logically independent, legal questions, it becomes clear that unless and until the rights and obligations of parentage are either (voluntarily) contractually waived or (involuntarily) judicially or statutorily terminated, the law must recognize as parent any individual (regardless of his or her gender, sexual orientation or marital status) who is biologically related to a child.

September 14, 2014 in Articles, Estate Planning - Generally, Science, Technology | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2014

Children With Three Biological Parents

DNAAlana Saarinen seems like an average teenager, but her DNA is not. She has DNA from three different people. Between 30 and 50 people around the world share Saarinen’s unique situation of having three biological parents. This is due to a procedure called cytoplasmic transfer, which is an infertility treatment that was done in the late 1990s and early 2000s, before the FDA requested the clinics to stop the treatment in 2002. The procedure involved using the cytoplasm from a female donor and transferring it to the mother’s egg prior to the egg being fertilized by the father’s sperm.

The practice resulted in healthy babies being born to parents that had spent years trying to conceive a child, like Saarinen’s parents who had tried various methods to conceive for 10 years. But it also had possible side effects and raised ethical and safety issues, which concerned the FDA. Now, the UK is considering legalizing a similar procedure called mitochondrial replacement, which would be used to treat and cure genetic diseases. The debate on whether Parliament should pass the proposed legislation is stirring much controversy and debate on the issue.

See Charlotte Pritchard, The Girl With Three Biological Parents, BBC, Aug. 31, 2014.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

September 3, 2014 in Current Affairs, Current Events, Science | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

Article on Restriction of Natural Gas Conveyances

Natural gas

Mark T. Wilhelm (Villanova University School of Law) recently published an article entitled, “All” Is Not Everything: The Pennsylvania Supreme Court’s Restriction of Natural Gas Conveyances in Butler v. Charles Powers Estate Ex Rel. Warren, 59 Vill. L. Rev. 375-407 (2014).  Provided below is a portion of the article’s introduction:

This Note examines the Pennsylvania Supreme Court’s opinion in Butler and argues that the court examined the incorrect line of cases in its analysis. Further, this Note argues that the Commonwealth should now adopt a new definition of minerals that is more in line with the vast majority of jurisdictions. Part II explains the conceptual background of mineral rights and the two approaches to mineral right presumptions in the United States. Part III addresses how the Supreme Court of Pennsylvania arrived at its decision in Butler and explains how the state supreme court misapplied past precedent in favor of a traditional scheme that supports natural gas companies. Part IV examines the questionable status of the Dunham Rule as a rule of property in Pennsylvania and the need for departing from the Rule. Finally, Part V explains how Pennsylvania citizens and practitioners can navigate the Butler decision in past and future land transactions.

August 11, 2014 in Articles, New Cases, Science | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

CLE on ART Law

CLEThe American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE webinar entitled, ART Law: The Intersection of Assisted Reproductive Technology Law with Family Law & Estate Planning, Wednesday July 23, 2014, 12:00 – 1:30pm.  Here is why you should attend:

Assisted Reproductive Technology (ART) law is not the niche practice most attorneys believe it to be. Understanding ART issues is vital for family law and estate planning attorneys.

Join our expert faculty for a discussion that will:

  • Create the necessary awareness for you to inquire about--and properly address--ART issues in your everyday practice

July 1, 2014 in Conferences & CLE, Estate Planning - Generally, Science | Permalink | Comments (0) | TrackBack (0)

Monday, June 16, 2014

A Pest of a Will

Bug

Carl J. Drake, who spent the last eight years of his life working as a research assistant t the Smithsonian, also spent his life studying bugs.  When he died in 1965, the entomologist left his lift savings and vast insect collection to the Smithsonian.  Now, after almost fifty years, the Smithsonian Institution says it’s having a difficult time carrying out Drake’s wishes, including buying more bugs. 

Over the years, the Smithsonian has used the money Drake has left in his will to the Institution to purchase about a dozen insect collections.  However, purchasing new bugs is tough due to changes to an environmental law made in the 1980s.  Those changes increased the red tape surrounding insect collecting, such as documents needed to prove the collections were made legally. 

The Smithsonian wants to use the income from Drake’s investment (now about $4 million) to not only purchase insects, but to support scientific research on Drake’s collection and other “True Bugs” it owns. 

For now, the petition to make changes lies in a federal judge’s hands, and it is unknown when she will rule.

See Associated Press, Smithsonian Museum is Bugging Out Over Insect Inheritance, The Guardian, June 12, 2014. 

June 16, 2014 in Estate Planning - Generally, Science, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

Article on Addressing the Claims of Posthumously Conceived Children to Survivor Benefits

Stork-babyJennifer Foor (University of Hawai’i Law Review) published an article entitled, Beeler v. Astrue: Addressing the Claims of Posthumously Conceived Children to Survivor Benefits, 34 U. Haw. L. Rev. 309-327 (2012).  Provided below is an excerpt from the introduction:

Innovations in reproductive technology provide couples facing infertility or terminal illness with previously unimagined possibilities for family planning. "[A]ssisted reproductive technologies enable conception to take place even after the provider of the gamete has died. Gametes can be harvested and cryopreserved . . . prior to the provider's death or retrieved from him post-mortem, and then used . . . to impregnate a woman with genetic material . . . whose providers are no longer alive." 1 These medical developments have made it possible for a child to be conceived after the death of a parent with few regulatory obstacles. 2 Many couples are choosing to cryogenically preserve gametes in anticipation of infertility caused by medical treatments, 3 or death from disease or war. 4 While preserving reproductive material for conception at a later time is no longer on the cutting edge of medical development, the legal consequences of posthumous conception continue to work their way through the courts, and federal legislators have yet to address the resulting issues head-on. 5

A number of cases springing from the birth of posthumously conceived children have risen to the federal courts of appeal. These cases result from disputes over a posthumously conceived child's rights to Social Security survivor's benefits. In the absence of applicable regulation, this collision between technology and law has led to circuit splits and at least one case pending review by the United States Supreme Court. 6

Beeler v. Astrue 7 is one such case rooted ...

May 21, 2014 in Articles, Estate Planning - Generally, Non-Probate Assets, Science, Technology | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Article on The Limits of Survivor’s Benefits in Response to Reproductive Technology

Test tubes

Jeffrey Sheehan (Vanderbilt University Law School) recently published an article entitled, Late Fathers’ Later Children: Reconceiving the Limits of Survivor’s Benefits in Response to Death-Defying Reproductive Technology, Vanderbilt Journal of Entertainment & Technology Law, Vol. 16, No. 983, 2013.  Provided below is the abstract from SSRN:

When Congress instructed the Social Security Administration to begin paying a social insurance benefit to “widows and orphans” in the 1930s, it simplified the process of determining an applicant’s relationship to an insured decedent in two significant ways: First, Congress ordered the agency to honor the intestate laws of each state when determining whether an applicant was actually the child of a decedent, and second, it ordered the agency to treat any child who could qualify as an intestate heir as if that child actually depended on the parent financially at the time of the parent’s death. Three-quarters of a century later, advances in reproductive technology make it possible for a child to be born decades after the death of one or both of her genetic parents. As the law begins to explore the rights and responsibilities of the parents who choose postmortem reproduction and the children whose lives come into being through those procedures, the heuristics that facilitated efficiency in the 1930s may yield unintended consequences. This Note explores some of those consequences and suggests minor alterations to the rules governing survivor’s-benefits eligibility intended to preserve the program’s social insurance function as reproductive technology transforms life after death from a hope or a fear into a choice.

May 20, 2014 in Articles, Science | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

The Health Importance of Social Interaction

FriendsExtreme loneliness can have serious health effects according to a research study out of the University of Chicago. Loneliness can decrease life expectancy and increase rates of depression. Additionally loneliness can negatively affect sleep, blood pressure, and stress levels.

 John Cacioppo, University of Chicago Professor of Psychology, recommends that individuals create and maintain meaningful social relationships to improve health. Individuals should work to have strong social connections by having regular in-person social interaction, and working to maintain existing relationships. However, extreme loneliness is more than being isolated, and it is important for a person to also feel like a member of a group and emotionally supported. Cacioppo suggests that maintaining healthy social relationships should be a consideration when making big life decisions, such as whether to move to another state for retirement, since moving away from existing social networks may leave the person without the social interaction and support needed for a healthy life.

See Christopher Bergland, Maintaining Healthy Social Connections Improves Well-Being, Psychology Today, Feb. 18, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

March 27, 2014 in Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 4, 2013

Life Insurance Industry Called Out for Discrimination

DNA-database

Robyn Ward, an eminent Australian geneticist at the University of New South Wales, is slamming the life insurance industry for their continued practice of discriminating against people with genetic predispositions to diseases like cancer.

Her comments follow a recent Medical Journal of Australia article reporting the story of a young Brisbane father with a genetic predisposition to colorectal cancer.  The father approached the insurance arms of the four major Australian banks and was denied each time for his predisposition.  He received insurance from one company after going to the Australian Human Rights Commission and claiming discrimination.

In Australia, health insurers cannot use an applicant’s genetic information in assessments, but life insurance companies can.  Ward believes this discrimination could dissuade patients from getting tested for their diseases, thus decreasing preventative measures.

See Chris Johnston, Life Insurers Slammed for Treating Genes as Destiny, The Canberra Times, Sept. 2, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

September 4, 2013 in Death Event Planning, Science | Permalink | Comments (0) | TrackBack (0)

Saturday, August 31, 2013

Early Retirement May Boost Health

Retire

According to a recent study by the Tinbergen Institute of VU University Amsterdam, male civil servants who retire earlier significantly decrease the probability of dying within the next five years.

Researchers based their findings on a one-time policy decision which allowed certain Dutch civil servants to retire at age 55 instead of the typical retirement age in the early 60s.

Although retiring earlier could make people healthier, early retirement poses a longevity risk to pension funds as well as the risk of dementia, which a recent French study shows to decline the longer a person works.

See Elizabeth O’Brien, Study: Early Retirees Less Likely to Die, Market Watch, Aug. 23, 2013.

August 31, 2013 in Estate Planning - Generally, Science | Permalink | Comments (0) | TrackBack (0)