Birth after Death: Perpetuities & the New Reproductive Technologies
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The Rule Against Perpetuities ("Rule" or "RAP") has long terrorized law students and lawyers alike: "no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." Despite this deceptively simple formulation, the Rule's complexities have bedeviled generations of property students and practitioners on both sides of the Atlantic. Reformers argue that the Rule's complexity is unnecessary to achieve the Rule's objectives and turns it into merely a malpractice trap. Despite this "reign of terror," the Rule continues to apply in various forms in most U.S. jurisdictions and in England today, partly because it protects important social interests, but partly because of inertia. The Rule is complex and esoteric, two qualities unlikely to induce state legislatures to take up the banner of reform. The development of new reproductive technologies ("NRTs"), however, poses a serious threat to the Rule, one that could eliminate the Rule's ability to function. Human cloning, for example, has gone from science fiction to a subject for debate in Congress. Scientists have begun experimenting with the cloning of early stage human embryos, and one group has claimed (apparently falsely) the birth of a cloned human. As a result of the availability of these reproductive technologies, even dead people will have to be presumed to be fertile, and the period of "actual gestation" included within the Rule's period could be indefinitely extended by the existence of frozen embryos. Without reforms to address this threat, in a few years, or perhaps tomorrow, a case will arise that forces the court to choose between an interpretation of the Rule that strikes many future interests involving children and other descendants as invalid and an interpretation that almost entirely eviscerates the Rule. Either alternative's consequences-eliminating (or at least severely restricting) a set of future interests or eliminating the Rule's important protections--has serious and unwelcome social consequences. In this Article, we outline the problems posed by the development of new reproductive technologies for the Rule Against Perpetuities and propose reforms to address those problems. In Part I, we describe the Rule Against Perpetuities, the policies behind the Rule, and past attempts at reform. In Part II, we describe several current and potential reproductive technologies that pose a threat to the Rule. In Part III, we describe the problems these technologies pose for the Rule. In Part IV, we propose reforms designed to protect the policy interests served by the Rule and prevent the problems caused by the new reproductive technologies.
author list (cited authors)
Hoffman, S., & Morriss, A. P.