Are unborn embryos children?

Historically, unborn embryos have not been considered children. Recently, in LePage v. The Center for Responsive Productive Medicine, P.C., the Alabama Supreme Court found otherwise. Ordinarily this would not be an “elder law” issue, but the law considers unborn children to be potential heirs of an estate. For example, O.C.G.A. § 53-2-1(b)(1) provides:

Children of the decedent who are born after the decedent’s death are considered children in being at the decedent’s death, provided they were conceived prior to the decedent’s death, were born within ten months of the decedent’s death, and survived 120 hours or more after birth.

Subsection (c)(3) later provides:

Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life.

So, the question is whether this new idea that embryos are children will spread, both beyond Alabama and beyond the four corners of the issue in the LePage decision. Georgia already has a statute covering artificial insemination. O.C.G.A. § 53-2-5 provides:

An individual conceived by artificial insemination and presumed legitimate in accordance with Code Section 19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of intestacy from the parents and from relatives of the parents, and the parents and relatives of the parents shall likewise be entitled to inherit as heirs from and through such individual.

If this is an issue that concerns you, then you should speak with your lawyer about making sure your estate planning documents clearly state your intentions.