Small Law Firms

A Fetus’s Estate: Administering The Affairs Of One Who Was Never Born

News outlets have reported that this is the first estate ever opened for an unborn aborted embryo.

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Probate Judge Frank Barger of Madison County, Alabama, recently ruled that a father of an aborted fetus can be named a “personal representative” in accordance with the state’s probate laws.   Judge Barger referred to the fetus as “Baby Roe,” and with his order essentially created an estate for an individual who was never born.

Baby Roe was aborted by Ryan Magers’s ex-girlfriend at the Alabama Women’s Center in February 2017. Magers was opposed to the abortion and pleaded with the mother to not proceed.  Magers plans to use his status as personal representative to sue the Alabama Women’s Center and the manufacturer of the abortion pill the mother took to terminate the pregnancy. The cause of action will likely include wrongful death. The fetus was six weeks old upon termination.

Judge Barger’s ruling was supported by a November amendment to the Alabama State Constitution which states that that Alabama’s public policy is to recognize and support the importance of unborn life and the rights of unborn children, including the right to life. In deciding the application, Judge Barger reasoned that Baby Roe died without a last will and testament or any testamentary vehicle. Further, he stated that the father is the appropriate individual to serve as personal representative and to receive Letters of Administration. News outlets have reported that this is the first estate ever opened for an unborn aborted embryo.

As a citizen, this case raises serious questions as to the fundamental rights not only of aborted fetuses, but those of the mother and father. The Alabama Women’s Center has already argued that the ruling seeks to undermine a woman’s right to abortion and such a decision is harassing and intimidating to women considering abortion. As a trusts and estates practitioner, my concerns are much more personal. I question whether the mother petitioned to serve as personal representative and would the court consider her for the role of estate administrator. I am bothered by the prospect that the father as  personal representative could have the authority to sue the mother for the abortion. I ask whether the pill manufacturer and the medical clinic will implead the mother into the lawsuit. I worry of the possible use of this very personal experience imbedded with layers of emotion and intrapersonal relationships for a political and legal agenda.

Trusts and estates law applies to every individual and the law exists to provide a guide for people in the wake of death. Often it is these cases, the ones involving families, life, and death that become the landmark cases that shape our legal system.  A ruling like that of Judge Barger’s is sure to be considered in several courts and make its way through the appeals process. This is reminisecent of other trusts and estates cases that made it to the Supreme Court and eventually changed the law.  In ­­­­­­­­­­­Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court declared the State of Illinois’s ban on the fraternal inheritance rights of illegitimate children invalid as it violated equal protection.  More recently, in United States v. Windsor, 133 S. Ct. 2675, 2682-84 (2013), New York residents Edith Windsor and Thea Spyer were two women married in Canada. While New York did not issue marriage certificates for same-sex marriages at that time, it did recognize marriages from other jurisdictions. In 2009, Spyer died and left her estate to Windsor who sought a marital exemption for federal estate tax. The exemption was denied because of the Defense of Marriage Act (DOMA). Windsor challenged the law and the case made its way to the Supreme Court where DOMA was declared unconstitutional.

Depending on the development of Magers’s case and similar ones which are bound to arise, practioners will have to start contemplating new issues involving untraditional estates. The ramifications of such a ruling will affect penal codes in addition to tax, health care, and inheritance laws. Perhaps more importantly, rulings like Magers’s affect human interaction and family relationships, much like Trimble and Windsor.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com. 

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