How Many Children Do You Have?

It seems like a simple question. It’s the first question in the interview for many estate plans. But the answer may be far from simple. There are many issues involving children with unmarried parents, adopted children, stepchildren and children conceived through assisted reproductive technology. Establishing parentage is important for securing a child’s benefits such as support, social security, veteran’s benefits and inheritance rights.

The common law term parent refers only to a mother or father who is related to the child by blood. This definition now holds whether the child is born to natural parents who are married to each other or to parents who are not married to each other. Under current law, adoptive parents have the same rights and responsibilities as natural parents. Other persons standing in the place of natural parents, such as stepparents, are not, however, given such extensive rights and responsibilities

The general rule for an adopted child is that the adoption severs the parent-child relationship between the adopted child and his or her natural parents including severance of all inheritance rights. Thus, under Pennsylvania law, for purposes of inheritance by, from and through an adopted person, the adopted person is considered as a natural child of his or her adopting parents; and an adopted child is not considered to be a child of his or her natural parents. Pennsylvania provides a limited exception to this rule. A child who has been adopted may inherit from his or her natural kin (but not natural parents) when the natural kin has maintained a family relationship with the adopted person. The comment to the statute when it was enacted says that “[the exception recognizes that family relationships frequently continue for grandparents and others where an adoption may have occurred after the death or divorce of a parent.”

The most common form of adoption is by a stepparent who assumes financial and legal responsibility for his/her spouse’s children), and the non-custodial parent is released from all parenting responsibilities. Without adoption a step-child has no rights of inheritance or benefits as a child.

Pennsylvania law permits adoptions in same-sex households. For example, the partner of a biological parent can become an adoptive parent. Second parent adoptions enable the child to be covered as a dependent of the non-biological parent for health insurance and life insurance benefits. Adoption provides the child with inheritance rights and rights to federal benefits. Second parent adoptions give the non-biological parent legal rights as a parent in future potential custody, visitation and child support issues.

A posthumous child is one conceived prior to, and born after, the death of his or her father. Such a child, referred to in the law as en ventre sa mere (literally in his or her mother’s belly), has the same inheritance rights as a child born while his father is alive. A child is not entitled to full legal rights unless the child is born alive.

What about a child conceived by artificial insemination using the father’s sperm after the father is dead? Or a mother’s egg after she’s dead? According to U.S. New & World Report, more than half a million cryopreserved embryos are now in storage somewhere in the United States. An unknown but far greater number of sperm donors have also made deposits that could be used in assisted reproductive technologies. The law in most states is unclear. A case is presently pending in the U.S. Supreme Court on whether a child conceived after the death of his biological father can receive Social Security benefits as his father’s surviving child.

In an attempt to solve these problems, The Uniform Parentage Act (UPA) has been promulgated by the Commissioners on Uniform State Laws and has been adopted by 8 states, not including Pennsylvania. UPA aims to modernize the law for determining the parents of children. It seeks to ensure that the parent – child relationship extends equally to every child and every parent, regardless of the marital status of the parent. UPA addresses the issues of children conceived by in vitro fertilization and artificial insemination as well as a child possibly carried by a woman other than the legal mother. It also addresses the identification of fathers and the termination of parental rights.

An optional section of UPA includes provision for a gestational agreement – a contact between a woman and a married or unmarried couple obligating that woman to carry a child genetically related to either or both of the intended parents. The Uniform Commissioners state that we must recognize the obligations of parents in any possible combination and permutation of marriage of the parents, method for conception of the child, and arrangements that intended parents make to have children. Otherwise, we have children for whom nobody has responsibility.

Some scholars suggest moving beyond the accepted notion of only two parents. Acknowledging more than two parents, these scholars argue, “would better reflect the dynamics of the modern family, and also protect the children in such families. It would ensure that, even in the event of a split or major disagreement between the adults in question, the children would not be deprived of the affection, care and financial resources of any of the people they have grown up regarding as their mothers and fathers.” The notion of multiple parents is not all that new and novel – ask anyone who was raised with stepparents.

It is not flesh and blood but the heart
which makes us fathers and sons.