An Issue of Birthright

In the Fall 2013 issue of the Denver University Law Review, School of Law professor Kris Knaplund wrote an article that shed light on the plight of three American women living abroad, who faced difficulty conceiving children naturally. They received anonymous embryos from donors, gave birth, and were listed as the mother on their child’s birth certificate.

The mothers then had to take blood tests to prove their biological connection to their babies in order for their children to become citizens of their host countries—a rule established in 1952 when the implantation of donated embryos was not yet common practice. The test results showed that they were not genetically related and, as a result, their children were denied citizenship.

“In 2014 it doesn’t make sense for children born of assisted reproduction to be denied their rights,” says Knaplund. “We have to stop trying to force them into the same framework that we use for children who are not. We need a different framework.”

Knaplund first became interested in the rapidly growing field of assisted reproduction technology (ART) while writing about the Rule Against Perpetuities, a doctrine that conclusively presumes that a person’s children will be born within that person’s lifetime. “The purpose of the rule is to prevent interest in floating around for centuries,” she explains. “Traditionally, a woman can’t have children after her death. With assisted reproduction, that’s not the case. A person’s gametes can be still be retrieved after they die.”

“At the end of the day, people want to know who is going to own their property after they die,” Knaplund continues. “If your kids are born 10 years after you die, they might make a claim to your trust or will, and that can have an impact on your other heirs.”

Knaplund, an expert in property, wills and trusts, and bioethics, is now a leading scholar in the field of ART, which comprises a group of methods used to achieve pregnancy outside of the human body in a laboratory environment. The three most common forms of ART are in vitro fertilization, assisted insemination, and gestational carriers. These procedures also enable the conception and birth of children after the genetic parents have died. This raises a number of legal and ethical issues, such as whether gametes should be retrieved postmortem.

How to identify legal relationships for those born from donated gametes is a current topic of great interest in estate planning. For instance, existing inheritance laws in most states only account for children produced by living individuals. California lawmakers recently passed legislation specifying the conditions under which a child conceived posthumously may be considered an heir. Knaplund explains, however, that this area of law is unsettled in many states that are worried about encouraging assisted reproduction. “Certain states, such as California, are becoming more popular for these types of procedures.”

Though issues of citizenship in the cases mentioned earlier are matters of federal law, Knaplund explains a broader solution must be developed at the state level.

She recommends that state legislators revisit the Uniform Probate Code, which standardizes the laws concerning children born of assisted reproduction and separates them from laws that govern children born naturally. “It’s still unclear in some states whether the gestational carrier, the genetic donor, or the intended mother is considered the mother of the child,” she says.

Today, as chair of the Elder Law, Disability Planning, and Bioethics Group for the American Bar Association, Knaplund is working on better defining guidelines and policy when ART is used.

At Pepperdine Knaplund brings her research and expertise to the classroom to inspire the next generation of leaders to wrestle with established legal issues.

She also encourages her students to merge their professional and personal lives with their faith—a synergy that has allowed her to explore and effect change throughout her work with ART. “Pepperdine encourages professors

to become mentors to the students and to see ourselves as more than just purveyors of the law,” she says. “Success means more than just knowing the law. It’s also how you conduct yourself as a professional and how your personal, professional, and spiritual life go together.”

In 2006 and, most recently, this year, Knaplund received the School of Law’s 1L Professor of the Year award after being nominated by her first-year law students and, in 2008, she received the University’s Howard A. White Award for Excellence in Teaching. “It is the ability to teach and interact with students that makes every day enjoyable,” she says.

Her impact in the classroom motivated former student Jennifer Allison (JD ’07) to successfully nominate Knaplund for Harvard Law School’s 2014 Women Inspiring Change award in honor of International Women’s Day. The recognition placed Knaplund in the company of such legal experts as Supreme Court associate justice Sonia Sotomayor and U.S. senator Elizabeth Warren. “Professor Knaplund inspires me with her genuine warmth and tireless willingness to mentor those who follow her,” said Allison in her nomination letter.

By having discovered her purpose for both impacting and teaching the law, Knaplund is able to inspire her students to discover their own purpose. “Mark Twain said that the two most important days in your life are the day you are born and the day you find out why,” she enthuses. “I think part of what we’re trying to do at Pepperdine is help students discover what their passion is. That never gets old, because every year it’s different, and people have different interests and different concerns and I think that’s really exciting.”