Jenny Rozelle, Host of Legal Tea
Current Trends - Assisted Reproduction & Estate Planning - Episode 49
Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle. Welcome back for another episode of Legal Tea! Today’s topic is a current trend … something going on in current time, that is pertinent to my little estate and elder law world. Today’s topic involves assisted reproduction and how it intersects with estate planning – I’m sure you’re wondering, “How in the heck are you going to connect these dots, Jenny?” Oh, I am and I will – you just wait and listen. As always, let’s get a little foundation under us first – and specifically, talk about “what” assisted reproduction is.
According to the National Institute of Child Health and Human Development, assisted reproduction technology are “treatments and procedures that aim to achieve pregnancy.” A few of the most common assisted reproduction technology methods are:
1. In Vitro Fertilization (commonly referred to as IVF)
2. Intrauterine Insemination (commonly referred to as IUI)
3. Donated sperm or eggs
4. Using a surrogate.
Those are just to name a few! I’m not going into “what happens” in each, how about I leave that for the Doctors and medical professionals?! I read an article somewhere that basically said that assisted reproduction is essentially growing your family by any means besides sexual intercourse.
According to the National Fertility Association, 1 out of 8 couples experience infertility issues – therefore, as medical science makes progress, more and more of those couples may do assisted reproduction methods like IVF, IUI, surrogacy. You know, I talked about this at the end of my our last “current trends” episode (when we talked about inheriting cryptocurrency) – that, just like every other profession and field, the field of law is forced to change with the current times. So, as in the cryptocurrency episode, the Legislature and Courts are starting to analyze and give us guidance on how to “deal” with cryptocurrency in the estate planning world – they are doing the same in the assisted reproduction world.
Courts are having to deal with the topic of assisted reproduction. I recently read an article in a magazine written for Indiana attorneys put out by our State Bar Association and it described it like this – “In all these cases there are two competing interests: the fundamental right to procreate and the fundamental right not to be forced to procreate against one’s wishes.” Furthermore, they explain that there are more-and-more cases (I’m going to guess across the country) where Courts have held that embryos are considered to be “property” – as are sperm (considered to be “property”). This is important because what does an estate plan deal with? Someone’s … property. In fact, in cases, Courts have held that both embryos and sperm could be divisible under an estate plan. Wow – interesting, right?
The next level to analyze, according to this article, is whether there is anything in writing – specifically, to see if there are any documents that state what the individual wants to happen with their “property” (aka, their embryos or sperm) if something were to happen to them. The article proceeded to share a couple of stories (or examples) of where things have gone a little … sideways in this topic. First, it talked about a case in Texas, where a couple passed away without any “written guidance in any estate plan or fertility clinic consent documents for the disposition of their frozen embryos.” After some Court involvement, the Probate Court held that the frozen embryos were property and should be distributed to the couple’s only heir, which was a 2 year old son. They explained that on the 2 year old’s 18th birthday, he would determine the further disposition. What a strange ending!
The other story/example the magazine article shared was about a guy who was a cadet at West Point, and he ended up dying in a ski accident. However, before he passed away, his parents obtained an Order from their local Court to have sperm retrieved from their son. The magazine explains that “further litigation ensued as to whether they could utilize the sperm … to procreate.” Their reason? They wanted to use the sperm of their deceased son to continue the family name “in accordance with Chinese tradition” as well as to preserve their son’s legacy. The Court actually held … in their favor! Both of these stories exemplify the importance of writing down what your wishes are with YOUR property, if something tragic were to happen to you. Who knows what either of the parties in these stories would have wanted … and that is the problem.
While I do not do family law (it’s not my thing!), the magazine article shared that these issues are creeping into family law too – like in a divorce, for example. Many Courts are, yet again, relying on what is in writing – was there anything in the clinic consent form documents, or did the parties execute a contract that “XYZ” would happen to their … property … if a divorce were to happen. Or, in Pennsylvania for example, a Pennsylvania Court found that embryos were considered marital property – and therefore, subject to distribution through the divorce proceeding.
After successfully making our brains about explode, the magazine article concludes by sharing that many fertility clinics have language within their documents to designate what their clients want in the event a divorce happens or a death happens. Though, in order to ensure wishes are appropriately honored, it’s likely wise to ensure the documents held at the clinic AND your estate plan state what your wishes are —and that they say the same thing. That way, in the event that we have to put those wishes into action, there’s no confusion or conflict (conflict between the clinic’s documents and estate plan).
So, if “assisted reproduction technology” is something that is pertinent to you; is something that you may be interested in the future; or just generally interested in this topic and how it may impact you or a loved one’s estate plan, we’re going to talk about what you can do estate-wise to set your plan up in a way that ideally will deter things going sideways inadvertently. Many of the following ideas and tips are based off of a wonderful article/blog I found from Thompson Law, PLLC, an estate planning law firm out of South Dakota. So let’s dive…!
Tip 1: Words are important, especially in an estate plan.
How is the word “child” or the word “grandchild” defined in your plan? In our plans, for example, we often define child as being a “lineal descendant” or “adopted child.” Though, I can imagine some plans defining child as a “lineal descendant” only – what if you are inadvertently disinheriting adopted children (or grandchildren); or children or grandchildren conceived with egg or sperm donors; or children or grandchildren conceived through a surrogate. But what about words like descendants, issue, or heirs? Same issues, right? And maybe it’s not really about inadvertently disinheriting – but what if the kids or grandkids don’t get along – and the kids or grandkids try to sue and claim that *that* child shouldn’t count as a beneficiary. Can they sue? I’ll answer that easily – anyone can sue anyone for anything. So, sure. Then they’ll use your estate funds … in the most silly (stupid) way.
Tip 2: Get it in writing, friends. Us, lawyers, like things in writing!
Remember those stories I shared earlier about the 2 year old inheriting his parents’ genetic material; and the West Point cadet, his parents retrieving sperm before he passed away? What would YOU want to have happen if you had genetic material stored, and you passed away? Well, get that in writing. Some things to consider: (1) What happens to your genetic material if you pass away? (2) If you want it kept, who should get such genetic material? (3) If you want it kept, do you want your estate to pay any expenses associated with storing and distributing it to whoever-you-want-to-give-it-to? (4) If you partner/spouse is still living when you pass, do you want them to be able to still use it? (5) Do you want your genetic material stored for a certain period of time, and if time has passed, do you want it destroyed or donated? Obviously, there are many things to consider!
Tip 3: Check with financial institutions that hold your assets, especially if you have beneficiaries designated on them!
Oftentimes, on assets like retirement plans or life insurance, you can designate a beneficiary or beneficiaries. You will sometimes see a term of art called “per stirpes” or “issue” on those beneficiary designations. These are fancy legal words that deal with children – and designating them as beneficiaries. Anyway, you may want or need to call the financial institution and/or life insurance company (or check with your financial advisor/planner to have them check) to see how the companies define child; or deal with per stirpes, or issue – and I could see needing to explain to them WHY you’re asking. Perhaps instead of listing “child/children” or “per stirpes” you designated their names specifically. No confusion of your intention there!
These last three tips are just scratching the surface. Time will pass – this episode will turn 1 year old, 5 years old, 10 years old, etc. and we’ll probably look back and say, “Wow – that’s ALL we were thinking of then?!” Like I said earlier in this episode, this topic is fairly new to my estate world – and we’re still working on ways to support individuals and couples navigating their assisted reproduction journey. That is why it is so, so important to disclose something like this to your estate planning attorney, in case this episode gets old … the material gets old .. and maybe laws have changed/gotten updated. It may feel weird or even inappropriate to tell your attorney – I understand it’s such a private thing – but at the end of the day, just remember we can’t do our job and protect you and your plan, if we don’t know.
Next week’s topic is on estate planning of the rich and the famous – on that episode, we’re going to talk about actress, Elizabeth Taylor – such a classic, right?! Last “celebrity estate planning episode” we had Farrah Fawcett, who had an awesome estate plan. Can we go 2-in-a-row? Tune in next Tuesday, Legal Tea Listeners, to find out. Talk to you then and stay well!
The Intersection of Assisted Reproduction with Estate Planning and Family Law: Are you asking the right questions on your intake documents?, Amanda D. Sapp, Res Gestae Magazine, January/February 2022.