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  • Writer's pictureJanene Oleaga, Esq.

3 Questions Estate Planning Attorneys Should Ask in 2023: Assisted Reproduction Edition

Updated: Aug 29, 2023

Advances in assisted reproductive technology (ART) are implicating estate planning in myriad ways.

estate planning for embryos

What is ART?

The CDC defines ART as "all fertility treatments in which either eggs or embryos are handled."


How is ART impacting estate planning?

The number of cryopreserved embryos and cryopreserved gametes in the United States is significant and will continue to rise. According to the Society for Assisted Reproductive Technology (SART), the number of IVF treatment cycles performed in the United States in 2013 was 174,962. This represents a 55% increase over the number of IVF cycles performed in 2003.


IVF and assisted reproduction is expected to explode in 2024 and beyond as the CDC reports climbing infertility rates, an ever-growing number of fertility clinics in the United States, and an escalating demand for gestational surrogates globally. The United States is currently the most popular destination for gestational surrogacy around the world, with Global Market Insights projecting astronomical growth in gestational surrogacy arrangements by 2032.


Additionally, more and more LGBTQ+ individuals are choosing to pursue assisted reproductive technology as a means to grow their families. As a family formation attorney I have assisted countless couples and individuals become parents through third party assisted reproduction including surrogacy, egg donation, sperm donation, embryo donation, and adoption.


What does assisted reproduction have to do with estate planning?


Estate planning attorneys typically don't ask their clients questions about how their children were conceived. Though a somewhat uncomfortable topic for attorneys who specialize in the probate code, the following questions offer a starting point for how to better serve clients and their families in 2023 and beyond.


#1: Did you grow your family through IVF or assisted reproduction?

#2: Do you have cryopreserved genetic material remaining?

#3: Did you ever donate sperm, eggs, or embryos?

 

#1: Did you grow your family through IVF or third party assisted reproduction?


If your clients pursued IVF with their own gametes (sperm and eggs) you can skip to question #2. If your clients had children through sperm donation, egg donation, embryo donation, or with the assistance of a gestational surrogate, a few things should be addressed when creating your clients estate plan.


Most surrogacy journeys require some level of estate planning for both the intended parents (parents through the surrogacy arrangement) and the gestational surrogate. At a minimum, the intended parents named guardians in their gestational carrier agreement and completed formal guardian elections in the event of their incapacity or death. These forms should be revisited at the time of the parties estate plan. Did your clients also complete Last Wills and Testaments?


If a couple conceived through sperm donation or egg donation, at least one parent is a not a genetic parent. In cis-gender heterosexual couples, this usually does not prompt further inquiry. However, with LGBTQ+ couples, it is important to ensure the children that belong to them are also considered their children legally. Ask the questions:

  • What steps were taken to ensure the non-gestating or non-genetic parent's legal parentage? Typically this looks like a judgment of parentage or adoption decree. In 2023 courts in Pennsylvania and Oklahoma removed the non-genetic parent's name from the birth certificate of their child conceived through assisted reproduction, and stripped the non-genetic parent of parental rights.

  • Is the non-genetic parent considered a legal parent by institutions holding assets for your clients? What if your client has a trust with their children named as beneficiaries, but the bank or financial institution only recognizes children through genetic connection or adoption?

#2 Do You Have Cryopreserved Genetic Material?


The answer to this question necessitates a number of other questions beyond the scope of this article, but it is nevertheless a good starting point. If your client has embryos, at what clinic are they stored? What do the fertility clinic forms indicate about the future disposition of these embryos?


A Note About Clinic Forms: Every fertility clinic requires clients complete forms regarding future disposition of their genetic material. What will happen to their embryos upon their death or divorce? Will one party retain the right to have future children should the parties divorce? Will the other party be considered a legal parent in this scenario? Will the embryos be destroyed upon the death of both parties? What if these questions were left unanswered? Did your client sign a legally binding embryo disposition agreement? Always request to review clinic forms completed by your clients.


While not alone determinative, courts in at least a handful of states have given clinic forms great deference in disagreements between progenitors regarding the disposition of their embryos. (See Kass v. Kass, 91 N.Y.2d 554 (1998) indicating the court's preference for honoring an embryo disposition agreement, or in the absence of such agreement, clinic forms completed by the parties. See also Davis v. Davis, 842 S.W.2d 588 (Tenn.1992) where the court ultimately used a balancing interest approach to determine the disposition of embryos but indicated the court would have honored a contract between the parties had one existed). There exists a legal trend in state courts throughout the United States giving embryo disposition agreements the same deference as validly executed premarital agreements. More on embryo disposition agreements here: Considering IVF? You Probably Need an Embryo Disposition Agreement.


Why review the clinic forms?

As an estate planning attorney you should always request to review any clinic forms completed by your clients. Clinic forms are completed at a time when the individuals completing them are hoping to begin a family. Estate planning generally occurs at a later date. If your clients wishes regrading future disposition of their genetic material have changed, you should address the inconsistent clinic forms in your client's estate plan. Sometimes clinic forms contain clauses that are unenforceable without further action or consent from your client. If you have questions about the enforceability of a clinic form, or provision therein, call an attorney with expertise in assisted reproduction law.

It is essential to address your client's intentions regarding future disposition of their embryos as part of their estate planning. Is your client's estate plan consistent with their clinic forms? If your client's present wishes diverge from clinic forms completed at an earlier date, how will you ensure their new intentions are honored?


Further questions for your clients relating to cryopreserved genetic material:

  • What do you want to happen to your embryos or gametes upon your death? Do you want them to be discarded? Donated? Stored for a certain period of time? (Further reading: What to do with remaining embryos after IVF.)

  • Do you want your embryos/gametes stored for a period of time? If so, will your estate pay expenses associated with storing or distributing your embryos/gametes?

  • If your partner or spouse is still living when you pass, do you want them to be able to use your stored embryos/gametes for future family building?

  • If your partner uses your stored embryos/gametes do you want the resulting child(ren) to be your legal child(ren)? Is posthumous parentage permitted in your state? If your client resides in a state such as Ohio, where posthumously conceived children do not have a right to inherit from a parent who dies prior to the child's conception, but your client wants to provide for their posthumously conceived children, you need to make a plan. Getting clarity on the overlap between the trust and probate code in your state and laws surrounding legal parentage is important if your client is planning for posthumous reproduction. More on posthumous parentage here.

  • Where are your embryos stored? Are your embryos in a state introducing personhood laws? In 2022, several states introduced bills that, if passed, would create laws giving embryos the same status as living human beings. If an embryo is deemed a person, do they have a right to inherit under your estate plan? This is an area of developing legislation that has been grabbing headlines since the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. More on Dobbs and it's implications for IVF patients here: IVF in a Dobbs World.

  • No, really, where are your embryos stored? Just because your clients created embryos with a certain fertility clinic doesn't necessarily mean their embryos will remain at that fertility clinic indefinitely. Oftentimes clinics transport cryopreserved embryos to a larger storage facility. If this is the case for your clients, did your clients sign any documents with the storage facility directly? Where is the storage facility located?


#3: Did you ever donate sperm, eggs, or embryos?


If your client ever donated sperm, eggs, or embryos the resulting child(ren) may be unintended beneficiaries depending on how these terms are defined in your client's estate planning documents. It may be a good idea to include an exception for genetic offspring through sperm donation, egg donation, or embryo donation.

 

Takeaways:


Ask your client the questions. It may be uncomfortable, but the consequences can be profound. Advances in assisted reproductive technology are outpacing the law and will only continue to do so.


Write your client’s wishes down. Address your client's wishes regarding any cryopreserved gametes or embryos and formalize their intentions in a legally binding agreement, if possible. There are trends regarding the disposition of embryos upon death or divorce, but there is no uniformity in approach from one state to another. The status of posthumously conceived children and the disposition of embryos upon death are going to become increasingly complicated as more decedents leave cryopreserved embryos behind.





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