Three Questions to Ask Your Lawyer When Using Assisted Reproductive Technology

By Carole M. Bass, Esq.
Published in Resolve for the journey and beyond, Spring 2012

The questions and challenges facing you as you deal with infertility may seem endless. Creating a will may be the furthest thing from your mind and may even seem unnecessary. The truth is, however, that if you are using assisted reproductive technology (ART), you have estate planning issues that require special attention.

What are some of these issues?

Removing and storing sperm and eggs (gametes) and creating and storing embryos bring about the potential for “posthumous conception” meaning that a child could be conceived after your death using your gametes or embryos. If something happened to you ,would you want your spouse or partner to use banked gametes and/or embryos to have a child after your death? Would you want that child to inherit from your estate? 

What if something happened to both you and your spouse or partner? Would you want someone else (such as your parents) to use your banked gametes and/or embryos?

If you are using a surrogate (or are adopting) have you provided for guardianship in the event that you and your spouse or partner die before the child(ren)’s birth? This is of special concern where you are using an out of state surrogate and you are traveling together for doctors’ visits or to be present at the birth.

In the event of your death, would you want to provide financially for your spouse or partner to continue ART treatment? 

Questions like these are relatively new, and the law in most states fails to provide adequate answers. Furthermore, these very important questions are often going unaddressed because even when an individual or a couple meets with an estate planner, the attorney is not asking about the use of ART and the client is either too embarrassed to raise the subject or is unaware of its importance to the estate plan. If there is one thing you take away from this article, it is that you need to raise the subject. 

The following are just a few of the topics you should talk about with your estate planning attorney:

1. What do you want to happen to your banked gametes and/or embryos at your death?

Because this is an emerging area of law, questions regarding the ability to bequeath gametes and embryos by will and the enforceability of clinic agreements providing for the disposition of gametes and embryos at death remain unsettled. The best step toward insuring that your wishes are carried out at your death is properly documenting those wishes. In the absence of a clear expression of your wishes, questions as to the disposition and use of your gametes or embryos after your death may be left to a court to decide with little information to guide it.

Many clinics will require you to sign forms directing what will happen to banked gametes or embryos in the event of death or divorce. It is important to make sure that your will and other estate planning documents coordinate with the agreements you sign with the clinic. 

2. Would you want a child conceived after your death using your banked gametes or embryos to inherit from your estate? 

While most states do not have law clearly answering the question of whether a posthumously conceived child will inherit, in those states that do, and in model laws being proposed, the trend is to consider a posthumously conceived child as a child of his or her deceased parent for inheritance purposes only if this clear intention was spelled out by the deceased parent and if the child was conceived within a certain time period following the deceased parent’s death. It is important to know the law in the state where you live. If you live in a state where the law is unclear it is important to document your wishes, especially if you want a posthumously conceived child to be treated as your child for inheritance purposes.

With the U.S. Supreme Court poised to decide whether twins conceived through in vitro fertilization (IVF) after the death of their biological father are entitled to collect Social Security survivor benefits, perhaps the reality of posthumous conception and the estate planning needs associated with infertility will be brought to the forefront. The Court is slated to hear oral argument in Astrue v. Capato on March 19, 2012.

3. In the event of your death, would you want to provide financially for your spouse or partner to continue ART treatment? 

If you are creating a trust for the benefit of your spouse or partner you may want to consider permitting invasions of principal to pay for infertility treatment. It also may be appropriate to consider life insurance for this purpose.

This article does not discuss every issue that may be relevant to your situation. The bottom line is that it is important to discuss your situation with your estate planning attorney so that every provision can be made to insure that your wishes are followed in the event of your death.

Carole M. Bass, Esq. is Counsel in the New York midtown office of SNR Denton US LLP and a member of the firm’s Trusts and Estates practice group. She concentrates her practice on estate planning, administration and litigation and enjoys helping individuals who are using assisted reproductive technology with their specialized estate planning needs. She can be reached by email at carole.bass@snrdenton.com.

The views expressed in this article are those of the author alone, and should not otherwise be attributed to SNR Denton US LLP or its clients.  This information should not be considered as, or as a substitute for, legal advice and is not intended to nor does it create an attorney-client relationship.