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Defining Child: Estate Planning Issues for Families with Children Born through Assisted Reproduction Technology (ART)

14243824_s-process-s250x373The legal and medical costs associated with assisted reproduction can be staggering, and as such, many intended parents tend to overlook the crucial step of ensuring that their genetic material and their child(ren) are protected in all circumstances, including separation, divorce, and death. Below are some frequently asked questions about assisted reproduction and estate planning.

Isn’t a donor or gestational carrier agreement enough to protect me?

Donor and gestational carrier agreements are critical elements of the process and do much to define the rights and obligations of the parties. But many clients also decide to take additional steps to protect their future children. For example, many individuals and couples elect to sign estate-planning documents to clarify intent in the event that both intended parents die prior to the child’s birth. These documents can also provide for the future children, identify guardians to care for them, and retain assets in trust for the benefit of a child born through a gestational carrier agreement. Additionally, known egg donors and sperm donors who do not intend to provide for genetic offspring born of donated material, can use estate planning documents to clarify their intent that such offspring not be considered children for the purposes of inheritance.

What happens to genetic material upon death?

Notably, in most states eggs and sperm are considered property and their disposition is controlled similarly to other types of property. However, embryos are also often considered property and issues regarding their disposition and storage do not get the constitutional protection that humans do. ART clinics (via consent forms) frequently present patients with three options for disposition of genetic material upon death: destruction, donation for research, and donation to another couple. However, some clients have found that none of those options are appropriate or desirable for them and use estate planning documents to declare that following a death or disability, genetic material is donated only to a specific friend or family member, or even held in trust with an appointed trustee who can decide how it should be managed in the future.  It is important to my clients that they know what will happen to their genetic material or embryos if they are not alive to decide.

Why should I talk about my ART journey with an estate planning attorney?

Wills and trusts typically identify beneficiaries as “all children then living” (at the time of the testator’s death). Due to the ability to store and utilize genetic material even after death, estate planning attorneys can assist clients who have gone through ART to properly define and include all of their children, and to ensure that “child” is clearly defined according to their wishes and non-genetic or posthumous children are not inadvertently disinherited. Clients using ART should also speak to other relatives about their estate planning documents to ensure that “grandchild” or “niece/nephew” definitions do not accidentally exclude children born through ART.

(This article is not intended as legal advice and should not be relied upon as such. Each family and agreement is unique, so you should hire a competent attorney to advise you specifically about your particular case.)

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