The issue was that her boyfriend, William Kane, was dead. His adult children had taken her to court to challenge her right to use the frozen sperm he had left to her. In a series of lawsuits over several years, the California courts had to decide whether Kane’s genetic material was property, like stocks or real estate, and whether he could dispose of it as he wished.

A court eventually ruled that genetic material is a person’s personal property and is governed by the same probate law that covers other property, with limitations. The court also had to decide whether these not-yet-born children would disrupt the settlement of Kane’s estate, to the detriment of his living heirs. The court ruled that the state cannot establish paternity if the father is dead. Therefore, any “post-born” children would not be recognized as Kane’s heirs and the estate could be settled promptly.

But California has since changed its laws to allow for the recognition of parents of post-born children. This case and its legislative repercussions became precursors to other high-profile family lawsuits. They serve as early warning signs that we are entering a new world of estate planning.

TOP VIEW There are many ways to become a parent today, but estate laws have yet to catch up with advances in the science of fertility. Defining exactly how your new child or children will fit into your family and estate plans—and making sure everyone is clear about your wishes—is the most effective way to address any inheritance issues you anticipate and, ideally, those that you cannot yet imagine.

Traditionally, heirs have been the people who are related to you by virtue of sharing your gene pool, and you could count on knowing the children born to you. But over the past decade since the Kane family’s case emerged, science has sent tradition into a tailspin. There are numerous ways a person can become a parent today. As a result, a will or trust document that seems simple or straightforward at the time it is written can later prompt questions and court wranglings that would have been hard to imagine, much less anticipate, at the time the document was written.

Parental Guidance
Roughly 1 percent of the children born in the United States are the result of alternative reproductive technologies (ART), according to the American Society for Reproductive Medicine in Washington, D.C. In 2002 alone, more than 45,700 ART babies were born. The numbers will likely only increase as technologies advance and become more accessible and as society becomes more comfortable with new reproductive technologies.

The combinations of genetic techniques that can be used to make a baby are dizzying. Parents might use donor sperm or eggs—or both—or donor embryos via artificial insemination, in vitro fertilization or a surrogate mother. The child might be genetically connected to both parents, or one, or neither. Helene Shapo, a professor at Northwestern University’s School of Law, likes to point out that a child born via a surrogate could easily have five “parents”: the two intended parents, the sources of a donor egg and sperm, and the surrogate.