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Does Using Assisted Reproductive Technology Affect Your Estate Plan?

Jesse A. Block - Kennesaw Will and Trust Lawyer Sept. 28, 2022

Assisted Reproductive Technology, or ART for short, is one of the great scientific advancements of the age. ART is used in a variety of ways to remedy fertility issues that couples may face. For example, a same-sexCouple looking at unborn baby couple may use surrogacy to conceive, or a young couple with one partner facing a terminal illness may use cryopreservation to store genetic material for future use. Additionally, a couple where one or both partners cannot conceive might use in-vitro fertilization to help them be able to. The use of assisted reproductive technology (ART) is on the rise. In fact, according to the Centers for Disease Control and Prevention (CDC), in 2019, nearly 80,000 babies born were conceived with some form of ART. And in 2020, approximately 2% of all infants born yearly are conceived using reproductive technology. 

Does This Mean that It's Time to Update Your Estate Plan?  

However, to answer the question above, the use of ART does have an impact on the way you should be estate planning. For example, the use of ART can create legal confusion about potential heirs--as in the case of children born after one parent’s passing. Generally, states would allow that child to inherit only if it was conceived before its parent’s death. However, the use of ART allows for children to be conceived after one parent’s passing. Here are some things you should be considering about you estate plan: 

  • First, any children born using ART should be named in your Will or Revocable Living Trust--should you wish to include them that is. Your attorney can help you to amend any existing estate planning documents to reflect this. A trust may be needed to protect your surviving spouse and children from potential legal challenges by biological relatives who are not part of the intended family structure. A trust can also help ensure that assets are available for the intended purposes after death. 

  • Second, if you have a posthumously-conceived child, you should be consulting with a qualified attorney to determine how your state’s laws govern their inheritances. It is important to note that the laws surrounding inheritance are different from state to state. In some states, posthumously conceived children are allowed to inherit. In others, they may be excluded from inheriting unless the deceased parent left behind explicit instructions for them to be included in their will or trust. 

    If you are considering using assisted reproductive technology (ART), it is important that you talk with a qualified attorney about how your estate plan could be affected. The first thing he or she will do is assess whether you have already created a sufficient estate plan. If so, there may not be any need for any changes at all. If not, your attorney will help you modify or create one that addresses any potential issues with posthumous conception and other aspects of ART treatment such as sperm banking and embryo freezing. 

  • Third, if you are considering the use of surrogacy, you should be consulting with a qualified attorney to determine how your state’s laws govern this. Some states don’t allow inheritances for children conceived through this method, while others do if parentage agreements were finalized before the surrogacy agreement was. Surrogacy is a complex process that involves more than just the birth of a child.   

    Surrogacy is an assisted reproductive technology procedure in which a woman carries another person’s embryo to term. Surrogacy agreements are typically made between the intended parents (IPs) who want to become parents and the surrogate mother who agrees to carry the IPs’ child. The IPs pay all medical costs associated with pregnancy and birth, as well as other expenses incurred during the pregnancy such as travel costs and loss of income for the surrogate mother. Once the baby is born, custody issues may arise if there was no pre-birth agreement specifying custody rights. Similarly, inheritance rights are also affected without action. 

    Surrogacy laws vary by state, and some states are very strict about what constitutes a valid surrogacy agreement. If you are considering the use of surrogacy, you should be consulting with a qualified attorney to determine how your state’s laws govern this. Some states don’t automatically allow inheritances for children conceived through this method, while others do if parentage agreements were finalized before the surrogacy agreement was. 

    In addition, if you are using an egg donor or sperm donor, there are legal issues that need to be addressed relating to these parties as well. 

    If you have children from a previous marriage or relationship who you would like to provide for in your will or trust, be sure to update them accordingly once any new children are born through surrogacy. 

  • Fourth, If you are considering the use of cryopreservation to store genetic material for future use, then you should be consulting with a qualified attorney to ensure that your intent for the material is specified in your estate plan, that your genetic material is legally-protected, and that you are sure to include an adequate sum in your estate plan to cover storage costs of it until you are ready to use it. 

    Cryopreservation is a process where cells are preserved at low temperatures, typically between -135°F and -320°F (-90°C and -196°C), in order to keep them viable for future use. Cryopreservation can also be used for embryos created through assisted reproductive technology (ART). The procedure can be used as part of an embryo adoption program or as part of a family planning strategy. 

    There are two main ways cryopreservation can affect your estate plan: 

    1. Your estate plan must include provisions for storing and maintaining any frozen embryos or gametes after your death; and 

    2. You must have some sort of legal protection in place to provide even after you pass away for any children that result from the procedure. 

    The most important thing is to make sure that your wishes are clearly outlined in your will or other estate planning documents. If there is any doubt about whether or not you want your genetic material used after death, then it should be clarified in your will or other estate planning documents now before any steps are taken towards creating embryos or sperm/eggs from frozen tissue samples. 

    If you do not want these embryos or sperm/eggs used after death and wish them destroyed immediately after death, then this should be expressly stated in your estate plan. 

If you are considering the use of or already have used ART and want to make sure that your estate plan is sound, let a qualified Kennesaw Will and Trust attorney help you to craft the right legal instruments to protect you children’s rights. There is nothing more important than providing for your family's future financial security. The decisions you make today can have a profound impact on their lives tomorrow. To learn more about how we can help protect your family's legacy, give Jesse A. Block and the Block Law team a call today at (770) 387-4529.