Assisted Reproductive Technology and Estate Plans

In-vitro fertilization, also known as IVF, has its origins in the 1890’s when the first known case of embryo transplantation occurred in rabbits in Great Britain. By 1973, scientists were able to transplant a human embryo into a woman. The first human IVF pregnancy occurred 47 years ago in Melbourne, Australia. In addition to IVF there are other assisted reproductive technologies, commonly called ART for short, that have changed human conception, such as artificial insemination and surrogacy that have made parenthood possible for people who are unable to reproduce naturally.

Significant changes are afoot in the area of estate planning of such families as more children are born from ART methods for reproduction. The Centers for Disease Control and Prevention (CDC) estimates that 1.8% of all infants born in the United States were aided by ART methods. In the context of estate planning, there are two main issues ART families should tackle. First, how parentage and descendants are defined for legal purposes, such as maintenance and inheritance. Second, is who controls the disposition of stored genetic material that has not been used.  

Are all children descendants, legally speaking, of course?

For the most part, laws in the United States, presume that a non-marital child or an adopted child are considered “children” and “descendants” in a will or trust. For purposes of inheritance, non-marital and adopted children are considered the same as biological children for inheritance purposes.

The question of parentage is also undergoing rapid challenges. Three dominant parentage relationships are at play:

(1)  Biological or genetic parentage (contributed biological or generic materials for the child’s conception);

(2)  Gestational parentage (carrying and bearing a child for someone else); and

(3)  Functional parentage (raising a child after birth when biological parents or gestational parents are not available).

An estate plan should address all of the areas of parentage that apply to the formation of an estate plan. All children should be specified by name in a will or included in the definition of “children” and “decedents”) in trust and will documents.

Who owns genetic material and is it property?

There are few laws in place that address the custody and disposition of stored genetic material. For the most part, the decision to use, destroy, or donate stored genetic material is in the hands of whoever controls the material. Contracts with the laboratory storing genetic material should identify the controlling party and what happens to the genetic material of a deceased or divorced person.

An estate plan should start with a review of storage provider contracts, to understand if the individual has made the decision of control already. You may be prevented from changing the issue of control by contract for example. Next, hard questions need to be answered. What happens to the stored material if there is no longer a desire to use it? What happen to the stored material if the relationship ends? Can the survivor have genetic material implanted posthumously? 

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