[WSBAPT] Posthumous Tissue Collection

[Douglas Bratt]

Hello:

I agree with Sherman.  Recall that the statute cited by Sherman is the only one (to my knowledge) in which a principal/agency relationship remains intact and enforceable after the death of the principal.

The Durable Power of Attorney powers for the appointed Attorney-in-Fact end at the time of death of the principal, so I don't think that would give the Attorney-in-Fact continuing powers to authorize such reproductive materials harvesting.

I think putting a parallel provision in the Principal's Will is helpful, in conformity with the authority given in the Instructions for Disposition of Remains document. (Use language like "Prior to the disposition of my remains, I authorize my agent to collect reproductive tissue, and to use that reproductive tissue in the manner he/she deems fit, including for posthumous reproduction, carrying out directions and authority that I have included in my Last Will and Testament, dated ________.  PROVIDED, that only (my spouse) is authorized to carry out these directions and we must be married at the time of my death, and (my spouse) must be the individual acting as my Agent under this Instructions for Disposition of Remain document."  NOTE:  this is a rough approximation of what might be appropriate language.  I think you would want the folks to be married and, most probably not estranged and/or living separate and apart, at the time of the death.  I don't think the estranged spouse should continue to have the power to carry out posthumous reproduction, in the event of the Principal's death in the midst of a Dom Rel filing.)

Note:  I have not intentionally left out consideration of unmarried folks who are co-habiting, and same sex couples, married or otherwise.  Such issues are well beyond the intended scope of my comments.

I think you would strengthen the effectiveness of these instructions if the Agent in the Instructions for Disposition of Remains and the PR named in the Will are the same person, and if that person is the spouse who would be using the reproductive materials.

HOWEVER, The issue of posthumous reproduction is potentially a minefield of legal chaos, it seems to me, if there is a family trust set up by the parents of the deceased which references benefits that are supposed to flow to John Doe's children, or issue, with John Doe being the son of the Grantors of the Trust.  Query:  I think most would agree that if the child had been conceived prior to the Principal's death, such a child would be his child, but a posthumous birth (perhaps to a widow who has already married another person - let's make that new spouse sterile, just for fun) creates almost scary complications.  And, oh, by the way, those complications would be magnified if the Grantor grandparents really did not like the widowed former daughter-in-law who has married that other person.  Remember, the widowed former daughter-in-law would be able to deny access to the newly-born grandchild, by the grandparents, whilst still holding out her hand, on behalf of the child, for grandchild status for that child as a beneficiary of the Trust.)

Note - the same would be true if the widowed spouse was male, and was using the deceased wife's reproductive material, imposing a new, certainly unanticipated, grandchild as a beneficiary of the Trust.  In other words, males can be conniving and manipulative, just like females can be (perhaps more so).  But, I did not want to complicate my comments with a bunch of she/he and her/him references that might otherwise be required in the name of gender sensitivity.

My 3 cents worth.  (Inflation has raised the former 2 cents worth to 3 cents).

Good luck.

Regards,

Doug Bratt

P.S.  Query:  How long after death can reproductive material be recovered from a deceased person's body?  Perhaps it does not have to happen in the hospital.  Perhaps a sympathetic health care provider would be willing to carry out the procedure at the mortuary after the body had been released for disposition.  Probably depends upon whether or not the body had been retained at the hospital for purposes of an autopsy.

Much also depends upon the circumstances of a death.  A sudden, unexpected death, perhaps from an accident, would call for posthumous harvesting of the reproductive material.  If a person was ill, however, and not expected to survive, could not the harvesting take place prior to death, with clear authority given in a Will as to rights of the surviving spouse to use the materials as he/she sees fit, including posthumous reproduction?


Douglas J. Bratt
Lawyer

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sherman Snow
Sent: Thursday, November 19, 2015 11:00 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Posthumous Tissue Collection

Hi Wendy -

Perhaps you could use RCW 68.50.160(3) the statutory authority for disposition of remains.   The statute allows one to appoint an agent for such purposes, in a written document in the presence of a witness.  You could include this language in a will, satisfying the witness requirement, and include in your provision the agent's authority regarding the tissue.  The appointment of an agent pursuant to the RCW should give it greater authority to require a hospital to honor.


Sherman

Snow Law PLLC
(206) 659-2498
3703 S. Edmunds St. #104, Seattle WA 98118
sherman at shermansnowlaw.com<mailto:sherman at shermansnowlaw.com>




From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Wendy Malkin
Sent: Thursday, November 19, 2015 10:09 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Posthumous Tissue Collection

Hi Listserv,

I am preparing basic estate planning documents for a newly married couple who do not yet have children.  They would like to include a provision that allows either of them to collect reproductive tissue from the other if the other has an untimely death.  One of the clients is a neurology nurse, and she has some experience with families making such requests without prior consent.

I did a bit of research (law review articles and hospital brochures/policies) to prepare the following consent language:

Posthumous Tissue Collection
I consent to the posthumous collection of my reproductive tissue for personal use by my spouse.  I authorize my spouse to request the posthumous collection of my reproductive tissue.  If my spouse makes such a request, I hope that her/his wishes are honored.  I authorize my spouse to use my reproductive tissue for posthumous reproduction.

My questions:

1.       Is the consent language clear?

2.       In which document should it be included (with my current level of knowledge, I plan to include it in the will, health care directive, and health care power of attorney)?

3.       Will hospitals in the Seattle area honor the consent language?  This is the big question.

I appreciate any advice on this matter.

Thanks,
Wendy

Law Office of Wendy Malkin, PLLC
1734 NW Market Street
Seattle, WA 98107
206-735-3177

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