Cloning and Intestate Succession:
Are “Parents” Defined Well Enough to Inherit?
Imagine our world in the not-too-distant future. Technology has progressed to the point that human cloning is not only a possibility but a reality. Cloning is not exactly a common practice, but numerous people do it for any one of a number of reasons. These reasons may range from a couple’s inability to have a child naturally, to a single person who does not want to get married, wants a child, and wants a child of his/her own genetic make-up, to a person who would like to attempt to replace a lost loved one. The list of reasons could go on.
Now imagine that you have decided that you would like to have a clone of yourself. You may be prompted to do this by one of the above explanations or some other justification. Whatever the case, you have a clone that you raise as your own “child”. You are married, your parents are still alive, and you have two living siblings. Your “child” grows up as your genetic twin, and looks much like you did at its age. Finally, imagine that your “child” lives a happy life until, tragically, it is killed in an automobile accident at the age of twenty-five. Unfortunately, you come to find out that your “child” did not have a will. Further, you are surprised to find out that your “child” just won a substantial amount of money in the lottery before it died. You, your spouse, parents, and siblings are all still alive and stand to possibly inherit your “child’s” assets. All of your relatives, upon hearing about the substantial assets to be gotten, are poised to fight for them. It is only then that you realize that you have no idea who has the better legal claim.
This example is intended to raise the issue of who, if anyone, will or should succeed to the assets of a clone that dies childless and intestate. For the purposes of analysis, this paper will assume that there are no probate laws in effect in the not-too-distant future that expressly address the issue of clones. Further, parallels will be drawn to current California law to determine what the outcome would be under the present legal regime, and to determine whether the results would be adequate or require new legislation. Specifically, using California statutory and case law, this paper will attempt to address one obvious inheritance issue that cloning will likely raise, namely, who a clone’s parents are. The ultimate conclusion of this paper, and the opinion of the author, is that the current California probate law does not sufficiently account for a world with clones, and thus leaves unanswered the question of who would inherit from a clone that dies unmarried, childless and intestate.
CLONING – A SHORT BACKGROUND
Cloning is a process that would allow a person to create a genetic twin of him/herself. The process would entail something along the following description. Genetic material would be isolated from cells taken from a donor (male or female), who according to the opening example would be you. This genetic material would then be introduced into the nucleus of an egg (ovum) whose own nucleic material has been destroyed. The result would be an egg that contains a complete set of genetic material identical to that of the donor. Specifically, if you were to contribute the nucleic genetic material and the egg were to be contributed by another, all of the cloned child’s nucleic genetic material would be from you. Further, this means that all of the cloned child’s non-nucleic genetic material would be that of the egg donor. (This means that a woman could produce a full genetic clone of herself by using her own nucleic genetic material and one of her own eggs).
Once the nucleic genetic material is introduced into the egg, the egg is stimulated prompting the process of cell division and behavior like a normal fertilized egg. The fertilized egg would then be implanted into the uterus of a gestational mother where the “zygote” would develop into a fetus and eventually be born from the uterus of the gestational mother. As stated above, the child would be the genetic twin of the donor of the nucleic genetic material. According to the above example, that would be you.
For the purposes of this paper, the important issue that this process raises is the parentage of the clone/child. Logically, you might think that the donor, you in the above example, would be the parent. This might be a logical conclusion that many people would come to if you intended to raise your clone as your own child. Scientifically, however, your clone, your child in this case, would be more aptly described as your sibling and the child of your parents, since the clone is your genetic twin and you received your genetic makeup from your parents. Scientifically, this would mean that not only is your clone your parent’s genetic child, but your clone would also be, technically, the sibling of your other siblings.
The issue of parentage would not end with the realization that your clone is genetically your parents’ child but would continue due to the other possible contributors to your clone’s life. This may include the egg donor, even though she contributed no nucleic genetic material, because without her contribution your clone may not have been born (and because the enucleated egg cell contains a small fraction of mitochondrial DNA). Secondly, the issue of parentage may include a gestational mother (and her husband if she has one, and whether she contributed the egg or not) because she carried and gave birth to the child. Finally, issues like adoption contracts could come into play, possibly creating parental rights in other “intended parents” that contributed no genetic material and were not responsible for the birth of the child.
Nanette Elster summed up the parentage issue rather well in her 1999 Hofstra Law Review article, Who Is The Parent In Cloning? According to Ms. Elster, “With so many contributors – biologic, genetic, and social – determining who shall assume the parental rights and obligations of the resulting child is very difficult, not only from a legal standpoint, but also from scientific, psychological, and sociological perspectives. In the cloning scenario, it is unclear which of the contributors is responsible for raising and supporting the resulting child. If parenthood is not clarified, there may be situations in which either the state will bear the responsibility, or the child will be caught in a legally complicated and protracted custody battle.” Nanette Elster, Who Is The Parent In Cloning?, 27 Hofstra L. Rev. 533, 536 (1999).
Since human cloning is a very near-future possibility, and because states have a substantial interest in the welfare of their children, current laws should be looked at very carefully to determine whether they adequately address the issue of clone parentage. As the scope of this paper extends only to probate law, that is the area to which I will turn next to address the issue of clone parentage.
INTESTATE SUCCESSION LAW
The division of property under California intestate succession law is set forth in sections 240 and 6402 of the California Probate Code. These two sections outline the probate distribution method known as “per capita with representation.” Section 240 provides the general rule: when a California citizen dies intestate (that is, without a will), his/her property is to be divided into as many shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his/her then living issue. Cal Probate Code §240 (2001). The problem with section 240 is that it states only the general rule. Section 6402, on the other hand, explains how an intestate’s (decedent’s) property should be distributed depending on who survives the decedent. If a decedent is survived by a spouse, then the entire intestate estate passes to the spouse. Cal. Probate Code §6402. If there is no spouse or no surviving spouse, then the estate passes to the children of the decedent. Id. If the decedent had no children or no surviving children, then the estate passes to the decedent’s parent or parent’s equally. Id. And if there are no surviving parents, then the estate passes equally to the children of the parents (the decedent’s siblings). Id. This method of distribution continues on into the grandparents and great-grandparents (and their descendants) until the closest heir is found. Id.
As you can see from the above description of California probate law, depending on who survives a person who dies intestate it is very important to be able to determine who certain heirs are, such as the parents. If a person dies without a will and has no spouse or children, then the person’s property passes to the parents, if any. Thus, in the example posed at the beginning of this paper, it would be necessary to determine who the clone’s parents are in order to determine who would get the clone/child’s lottery winnings.
Unfortunately, the Probate Code sections mentioned above describe only the method of intestate distribution and do not define the relationships of the people who may inherit from a person who dies intestate. Thus it is necessary to delve deeper into California law to see if the issue of parentage is addressed adequately enough for you to figure out who will inherit your “child’s” lottery winnings.
To refresh your memory, in the opening example your cloned “child” has just died intestate, leaving a significant amount of money to be inherited. You raised your “child” from birth, providing for him throughout his life. But are you his “father”? And is your wife, the woman who helped you raise your “child”, his “mother”? Under current California statutory law there are no clear answers to these questions.
First, under the current California Probate Code, “Parent” is defined to mean “any individual entitled to take as a parent under this code by intestate succession from the child whose relationship is involved.” Cal. Probate Code §54 (2001). “Child” is further defined in section 26 to mean “any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved.” Cal. Probate Code §26 (2001). As is painfully obvious, these definitions in and of themselves do not help much in determining who would inherit from a clone who dies childless and intestate. Thus it is necessary to look further into California probate law to see if an adequate definition of “parent” exists to apply in a world in which clones live.
California Probate Code section 6450 provides in part that “ . . . a relationship of parent and child exists for the purpose of determining intestate succession by, through, or from a person in the following circumstances: (a) The relationship of parent and child exists between a person and the person’s natural parents regardless of the marital status of the parents, and (b) The relationship of parent and child exists between an adopted person and the person’s adopting parent or parents.” Cal. Probate Code §6450 (2001). Section 6453 continues with the clarification of what constitutes a “natural parent”. That section states in relevant part that “For the purpose of determining whether a person is a ‘natural parent’ as that term is used in this chapter: (a) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act, Part 3 (commencing with section 7600) of Division 12 of the Family Code.” Cal. Probate Code §6453 (2001). Thus it becomes necessary to look further into California law by examining the California Family Code (enacted in part as the Uniform Parentage Act).
The relevant sections of the California Family Code (enacted in part as the Uniform Parentage Act) provide little more guidance than the Probate Code. Section 7601 provides that " ‘Parent and child relationship’ as used in this part means the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship.” Cal. Fam. Code §7601 (2001). Section 7602 goes on to state that “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” Cal. Fam. Code §7602 (2001). Further, section 7610 of the Code states that “The parent and child relationship may be established as follows: (a) Between a child and the natural mother, it may be established by proof of her having given birth to the child, or under this part; (b) Between a child and the natural father, it may be established under this part; (c) Between a child and an adoptive parent, it may be established by proof of adoption." Cal. Fam. Code §7610 (2001).
Finally, several other sections of the Family Code more specifically address the issue of determining paternity. Under Family Code section 7540, except as provided in section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. Cal. Fam. Code §7540 (2001). Section 7541 continues on to state that, “Notwithstanding section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.” Cal. Fam. Code §7541 (2001).
Further, according to section 7611, a man is presumed to be the natural father of a child if he satisfies any of the following conditions: (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court; (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce, (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation; (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) With his consent, he is named as the child's father on the child's birth certificate, (2) He is obligated to support the child under a written voluntary promise or by court order; (d) He receives the child into his home and openly holds out the child as his natural child. Cal. Fam. Code §7611 (2001).
Section 7613(a), seemingly the most closely applicable section to the cloning parentage issue, provides that, “If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.” Cal. Fam. Code §7613(a) (2001). Subsection 7613(b) further provides that “The donor of semen provided to a licensed physician and surgeon for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.” Cal. Fam. Code §7613(b) (2001).
The problem with these California Code sections is inherently obvious: they do not adequately take account of the diversity of issues that are created outside the context of natural or adoptive parenthood. The parent-child relationships defined above are determined mostly by the natural or social context of the relationships. In the case of cloning, this type of parent-child relationship indicator would not be very accurate. The case of cloning would be more accurately analogized to recent surrogacy cases. Unlike the Code sections above, determining parenthood in surrogacy cases often involves conflicts between genetic parents and birth mothers of children and does not depend on categorized legal presumptions.
Nanette Elster’s 1999 Hofstra Law Review article aptly framed the cloning-parenthood problem as follows: “The process of cloning will result in a child having genetic material from as many as four individuals: the person from whom the cell nucleus was derived, that individual's biological parents, and the woman contributing the enucleated egg cell, which contains a small fraction of mitochondrial deoxyribonucleic acid ("DNA"). In addition, if the egg with the transferred nucleic material is implanted in a surrogate gestational mother, the child will have two other potential parents – the gestator, and if she is married, her husband.” Nanette Elster, Who Is the Parent in Cloning?, 27 Hofstra L. Rev. 533, 536 (1999). Further, “There may also be intended rearing parents unrelated to the individual who is cloned, such as when the cloned individual is deceased.” Id. Though it is unlikely that a cloned child could have as many potential “parents” as Elster’s article contemplates, as the possibilities would likely be limited to contributors of genetic material (nucleic and mitochondrial), gestational mothers, and possible adoptive parents, the article does recognize the issue of parentage that will arise in a world with clones. Also, as you can see, Elster’s article shows that the possibilities of cloning parentage are quite similar to the issues raised in surrogacy cases.
In a 1998 Connecticut Law Review article, Michael Broyde also recognized that cloning would raise issues of parentage. Michael Broyde, Cloning People: A Jewish Law Analysis of the Issues, 30 Conn. L. Rev. 503 (1998). Though the article was written in the context of Jewish law, Broyde recognized that, if a female donates nucleic DNA and another female the egg, “it is quite possible to argue that both the clonor and the egg donor, who contributes the mitochondrial DNA, would be considered ‘mothers’.” Id, at 512. Further, like Elster, Broyde observed that cloning will raise parentage issues similar to those currently raised by surrogacy. That is to say, a surrogate mother (even if she contributes no egg or DNA) may have a convincing argument that she is the mother because she carried and gave birth to the child. Again, as you can see, the issue of cloning parentage has been analogized to surrogacy. This analogy is good because it gives the cloning-parentage issue a point of reference in current law. However, this point of reference should not be relied on too heavily because current law is far from settled in surrogacy cases.
Parenthood in the surrogacy context is generally addressed under two different types of surrogacy: traditional and gestational. Traditional surrogacy involves a woman agreeing to be inseminated with sperm from the intended father (or a donor), carrying the resulting child to term and relinquishing all parental rights to the child to the intended father and his wife if he is married. Elster, at 537. In that situation, the surrogate is providing the egg, which includes mitochondrial DNA and nucleic DNA, and is gestating the fetus. Id. Gestational surrogacy, on the other hand, typically involves a woman agreeing to carry an embryo created through in vitro fertilization of the egg and sperm of the intended parents or a donated egg and/or sperm and relinquishing the child to the intended parents. Id. The distinction between the two forms of surrogacy is that with gestational surrogacy, the woman who carries the child to term contributes no genetic material. Id.
California, unfortunately, has no specific law on point to deal with the parenthood issues raised by surrogacy. There is no statutory presumption to determine parenthood in the context of surrogacy. California courts have only recently addressed the surrogacy issue, and the issue has arisen generally in the context of surrogacy contracts. In the 1993 case of Johnson v. Calvert, a gestational surrogacy case in which the surrogate mother (who had contributed no genetic material to the child) asserted parental rights to the child, the court resolved the case by looking to the parties' intent, which was memorialized in a contract. Johnson v. Calvert, 5 Cal. 4th 84 (1993). Ultimately, the court concluded that “although the [Uniform Parentage] Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child – that is, she who intended to bring about the birth of a child that she intended to raise as her own – is the natural mother under California law.” Id, at 93. The court in Johnson further concluded that, under its analysis, in an “egg donation” situation, where a woman gestates and gives birth to a child formed from the egg of another woman with the intent to raise the child as her own, the birth mother is the natural mother under California law. Id.
One year later, in In re Marriage of Moschetta, the California courts were once again called upon to decide a surrogacy case. In re Marriage of Moschetta, 25 Cal. App. 4th 1218 (1994). This time the case dealt with the issue of traditional surrogacy (an arrangement where a woman is impregnated with the sperm of a married man with the prior understanding that the resulting child is to be legally the child of the married man and his infertile wife). Unlike the result in Johnson, the Moschetta court affirmed the lower court’s judgment by establishing the natural father and surrogate mother as the child’s parents. Id. In the process of its analysis, the court stated that “Genetic parenthood established by blood tests trumps a presumption based on the cohabitation of a married couple.” Id, at 1225. However, in its conclusion, the Moschetta court made clear its dissatisfaction with the difference in outcomes between gestational and traditional surrogacy cases: “Couples who cannot afford in vitro fertilization and embryo implantation, or who resort to traditional surrogacy because the female does not have eggs suitable for in vitro fertilization, have no assurance their intentions will be honored in a court of law. For them and the child, biology is destiny. . . . The result is disquieting.” Id, at 1235.
The most recent case to deal with the thorny surrogacy issue was In re Marriage of Buzzanca. In re Marriage of Buzzanca, 61 Cal. App. 4th 1411 (1998). This case, like Johnson, dealt with gestational surrogacy. However, two of the possible “parents” (the intended father and surrogate mother, neither of who contributed any genetic material) disclaimed any responsibility for the child. Id. The court found that “Just as a husband is deemed to be the lawful father of a child unrelated to him when his wife gives birth after artificial insemination, so should a husband and wife be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf. In each instance, a child is procreated because a medical procedure was initiated and consented to by intended parents.” (Italics provided) Id, at 1413. Thus, the court followed Johnson and found that the intent of the parties was the determinative factor. Further, the court stated that, “In essence, Family Code section 7613 is nothing more than the codification of the common law rule articulated in [People v.] Sorensen: By consenting to a medical procedure which results in the birth of a child which the Sorensen court has held establishes parenthood by common law estoppel a husband incurs the legal status and responsibility of fatherhood.” Buzzanca, at 1421 (citing People v. Sorenson, 68 Cal 2d at 285).
Finally, the Buzzanca decision is the only apparent surrogacy case which has foreseen the analogous issues that cloning will raise regarding parentage. The court felt that the existing law for determining parentage was insufficient and called on the Legislature “to sort out the parental rights and responsibilities of those involved in artificial reproduction. No matter what one thinks of artificial insemination, traditional and gestational surrogacy (in all its permutations), and as now appears in the not-too-distant future, cloning and even gene splicing courts are still going to be faced with the problem of determining lawful parentage.” Id, at 1428.
After reading all of the statutes and case law above, it is still not clear how the parentage issue would play out in a cloning situation. Probate Code section 7613, as I stated above, seems to be the only Probate Code or Family Code section that even comes close to addressing the type of parentage issues that cloning raises. This section explains the presumptions of who is a father in cases of donated semen. This could easily be analogized to donated or contributed nucleic genetic material. If, under the supervision of a licensed physician and with the consent of her husband, a woman (her egg) were to be “inseminated” with nucleic genetic material donated by another person, the husband could be treated in law as if he were the natural father of the child (clone) thereby conceived. The problem with this analogy is that the Code section is directed towards establishing a legal presumption (fiction) of “natural father” in the case of artificial insemination of semen so that a married couple can have children when the husband is sterile. The husband in fact has no genetic link to the child born from such a procedure. In the case of cloning, though, a man who decides to raise his clone as his own child would have a genetic link to the child, so section 7613 is not broad enough to cover the all of the circumstances likely to arise in cloning.
The surrogacy cases visited above are much more likely to provide some guidance as to how parentage would be addressed with cloning. However, it is important to remember that the surrogacy cases arose mainly in connection with surrogacy contracts. When the parentage of the child born of the surrogate arrangement was disputed the courts typically turned to the contract to determine the intent of the parties. However, minus the contract and looking at the intent of the “intended parents”, these cases could be applied analogously to cloning. If it is clearly the intent of a person to clone him/herself in order to have a child to raise as his/her own, courts may have no problem finding that the cloned person is in fact the “legal parent”.
The intention of the parties involved is not the only issue that could be addressed in determining the parentage of a clone, however. As seen in the Moschetta traditional surrogacy case above, a surrogate mother, impregnated with the sperm of a married man with the understanding that the resulting child is to be legally the child of that man and his wife, may still be found to be a legal mother of that child. The egg in a cloning case may not have the nucleic genetic material as in a typical traditional surrogacy case, but the fact that it contains even mitochondrial DNA may be enough for courts to find that the surrogate mother has enough of a genetic link to the child to be a legal parent. Under the example at the beginning of this paper, such a finding could mean that, if there was a surrogate mother, she would have some right to the intestate estate of your deceased clone “child”.
Analogously, your parents could argue, under the opening hypothetical, that their genetic link to your clone would be enough for them to be considered “parents” in the eyes of the law. They are, after all your parents, and your clone is your genetic twin. If a genetic link was enough to determine parentage in the Moschetta case, it may be enough to determine clone parentage. The fact is though, that, there are no laws that directly address the issue of clone parentage. In the context of this paper, that includes California probate law. This means that, without directly applicable or sufficiently analogous law, there would be no sure answer to the hypothetical as to who would inherit your deceased clone’s estate.
As it is evident that California does not currently have any laws sufficient to address the circumstances involving intestate succession and cloning, I would like to analyze some possibilities that could resolve the issue. One possible rule could resolve the issue of parentage in favor of the surrogate mother (and her husband, if she has one). This is probably the simplest possible rule, but is likely to effect an unfair result when the surrogate mother is not the wife of a genetically contributing man. As described above, a surrogate mother may or may not actually contribute genetic or biological material to the child she carries and to which she gives birth. If the surrogate mother does not contribute any genetic or biological material to the child, then she has no biological or genetic link to the child, as would the contributor of the nucleic genetic material. In Moschetta, above, the court found that someone other than the intended parent(s), the surrogate mother, was a “parent”. This proposed rule would result in the same unfair, unintended outcome.
If the surrogate mother does contribute biological material (an egg), then she would have a biological link to the resulting child, and thus her claim as parent would seem a little fairer than the claim of a surrogate mother not making any biological contribution. This scenario would be more akin to the situation in Moschetta because the surrogate mother would be contributing some amount of biological material. The Moschetta court stated that genetic parenthood established by blood tests trumps a presumption based on the cohabitation of a married couple. Moschetta, at 1225. This means that the small amount of mitochondrial DNA from the surrogate mother’s enucleated egg may be enough, if it shows up in a blood test, to establish her as a genetic parent, even if that result was never intended. Again, the result is unfair. The surrogate mother may have a small biological link to the child, but that link is not based on the dominant nucleic genetic material. Further, the result may not reflect the original intentions of the involved parties.
Another possible rule for determining parentage could resolve the issue in favor of the person who contributes the largest amount of the clone’s (child’s) genetic material. This rule would also be very easy to follow. The person who contributes the greatest percentage of nucleic genetic material (and his/her spouse, if any) would be the clone’s (child’s) parent(s). While this rule would make a determination of parentage easy, it may also result in an unjust outcome. This rule could result in a genetic contributor/donor being deemed a parent, even if the genetic material was donated anonymously for use by others as sperm is today. The genetic donor would have a strong genetic link to the clone but would never have been an intended parent. Contrary to this proposed rule, the better, fairer rule in situations of donated genetic material would mirror California Family Code section 7613, a provision covering sperm donation. The rule would hold that the donor of genetic material provided to a licensed physician and surgeon to be introduced into the nucleus of an egg of a woman unrelated to the donor is treated in law as if he/she were not the natural mother/father of a child thereby conceived. This rule would prevent a genetic donor, who did not intend to be a parent to any resulting child, from being deemed a parent.
A third possible rule would resolve the issue of parentage in favor of the person or persons who intended, as of conception, to raise the child as his/their own. This rule would be in line with the decisions of many courts in surrogacy cases. Generally, the issue of intent to raise a child will show up in contexts similar to surrogacy, where the surrogate mother agrees to carry and give birth to a child that will be raised by someone else. In order to make such a rule work there must be some standards for proving the intention to raise the resulting child. The standards of proof would be necessary to resolve possible conflicting “intentions” of multiple parties, such as genetic contributors (and their spouses, if any), surrogate mothers, possible genetic donors, and others. Intent to raise the resulting child should preferably be shown in some form of writing, like a surrogacy contract. Such contracts, if sufficiently and clearly setting forth who the intended parents are, should be given full force and effect absent such elements as fraud, undue influence, overreaching, etc. In short, interested parties should have the freedom to establish their intentions by contract.
One problem that could result, though, is the determination of intent in the absence of a writing or contract. In this event, courts should look at all of the circumstances of a case to determine intent. Using relevant and reliable circumstantial evidence, courts can imply contracts by which the involved parties will be bound. This may not always result in a decision in favor of the intended parents, but such results (or the possibility of such results) may provide incentives to clearly establish intent before any cloning arrangement is entered into. The one thing that courts should try to avoid is a finding of parentage split between a “natural” parent and a surrogate parent.
A final rule possible rule would resolve the issue of parentage according to the best interests of the child. In this case, a court could look at all of the circumstances, including genetic contribution, surrogacy, the intentions of the parties, and any existing contracts, to determine whom the parents should be. No one factor would necessarily be determinative. The overriding element, however, would be the interest of the child. Whoever the court determines would be the best parents would be deemed the child’s legal parents. The problem with this rule is that it could result in a determination of parentage contrary to any of the above factors. The result could be very unfair if the court determines that the actual intended parents are not in fact to be the parents.
Of the above-proposed rules, a combination of several of them will probably provide the best rule and a rule most likely to result in an equitable, indeed intended, outcome. In the case of cloning parentage, a hybrid rule focusing on genetic contribution and the intentions of the parties, along with contractual freedom to determine parental rights, will probably result in the most equitable outcomes. Under this type of rule, a genetic contributor intending to raise the resulting child as his/her own should be deemed the natural parent (along with the existing spouse, if any). This should be the result even if a man is the genetic contributor and an unrelated woman acts as the surrogate mother (and whether or not the unrelated surrogate mother contributes the enucleated egg). If there is more than one genetic contributor, then the focus should shift from genetic contribution to the parties’ intentions and the terms of any existing, valid contracts. And needless to say, if a wife bears the clone of her husband, then the husband and wife are the natural parents. In short, genetic contribution combined with the intent to raise the child should raise at least a rebuttable presumption of parentage, and any existing, valid contracts regarding the determination of parentage should be used as supplemental evidence if the other two factors are non-determinative or to possibly rebut the presumption.
Under the example given at the beginning of this paper the result of this proposed hybrid rule would favor you, the genetic contributor of your cloned child, the man who raised the cloned child as his own. This should be the outcome regardless of whether or not your wife carried and gave birth to the baby or provided the enucleated egg. You contributed the genetic material and intended to raise the child as your own. There would be a presumption of parentage unless that presumption was somehow rebutted. Rebuttal of the presumption would be unlikely since you already raised your child to the age of twenty-five. The only likely way to rebut the presumption would have been to refute your parentage while the child was still a baby, probably immediately before or after birth. And that circumstance would probably only arise in surrogacy-type cases which may or may not involve contractual issues. In the example above, this is not the case, so you and your wife would be deemed the parents and would inherit the intestate estate of your deceased child.
In conclusion, it is highly unlikely that that the present California Probate law would answer the question of clone parentage adequately enough to deduce who would inherit from a clone that dies intestate. Nor does the Family Code provide sufficient answers to who would be defined as, or deemed, “parents”, “mother”, or “father”. The cloned person, the genetic contributor, would probably have the best argument if that person were the one who initiated the process of bringing the clone/child into the world for the purpose of raising that child as his/her own. The intent of that person to be a parent may be enough according to some recent surrogacy case law. However, other recent surrogacy case law reminds us that other contributors to the process of bringing a child into the world may be seen as having particular legal rights, as well. The fact that California law is not developed enough to adequately deal with the surrogacy issues it already faces makes it clear that the same existing law is not presently sufficient for purposes of determining clone parentage. One solution to this problem would be to make sure you write a will if you are a clone and specifically identify by name the people to whom you want to leave your property. A more practical solution would be to simply create a legal definition of “parent”, “mother”, and “father” that can be applied to cases such as cloning, so that if a clone does die intestate there is no question about the chain of distribution and inheritance. However, the best solution would be to develop laws specifically dealing with the issues that cloning will raise, such as parentage. A rule creating a rebuttable presumption of parentage in favor of a genetic contributor who intends to raise the resulting child as his/her own is a possible rule that could resolve the intestate succession issues raised by cloning. Freedom to contractually determine parentage could supplement the rule and allow parties a little more assurance early on as to whom will be deemed the natural parents.