Advances in assisted reproductive technology and the expansion of fetal personhood laws are colliding with a body of property doctrine built on assumptions about reproduction that no longer hold.  In LePage v. Center for Reproductive Medicine, P.C., the Supreme Court of Alabama held that extrauterine embryos—fertilized and frozen in a laboratory—are “children” under the state’s Wrongful Death of a Minor Act.  LePage represents a dramatic extension of fetal personhood.

This shift carries profound consequences for trusts and estates.  If frozen embryos are treated as legal persons, they may qualify as heirs under intestacy statutes and as beneficiaries of wills, require the appointment of guardians ad litem to manage property on their behalf, and destabilize the rule against perpetuities (RAP).  These outcomes threaten the core aims of property law—predictability and administrability.

With dozens of states adopting fetal personhood statutes or canons of construction that require courts to interpret laws in favor of “unborn life,” the interpretive move in LePage could soon migrate into probate codes, perpetuities statutes, and the construction of wills.  The result would be a nationwide doctrinal shift binding estates to embryos that may never be born.

To prevent this outcome, this Note proposes a doctrinal reframing of the centuries-old en ventre sa mère rule.  Rather than treating a child born alive as alive since conception, property law should treat such a child as alive ten days before implantation in the womb.  This biologically grounded reform restores the doctrine’s original temporal limit, prevents the extension of legal life into decades-long cryopreservation, and preserves the function of inheritance law and the RAP.  Coupled with standardized postmortem conception statutes and clearer consent requirements for the use of stored embryos, this approach protects the stability of property doctrine while acknowledging realities of modern reproduction.