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Bar News - March 19, 2014

Elder, Estate Planning & Probate Law: Biological Assets: The Basics of Reproductive Estate Planning


With rapid advances in medical technology to assist the nearly 30,000 New Hampshire residents facing infertility, itís becoming more and more common for our clients to have banked genetic material.

By proactively making a reproductive estate plan, clients can help to protect their estates, and their families, from complicated litigation in this area of largely unsettled law. Joseph Kievernagel didnít have a good reproductive estate plan in place and when he died in an accident, right in the midst of fertility treatment, the court refused to let his wife continue treatment using his banked sperm. Estate of Kievernagel, 166 Cal.App.4th 1024 (2008).

Technology now allows for the reliable storage of not just sperm, but also eggs and embryos. These types of genetic materials can be stored for many reasons, such as in preparation for military deployment or to preserve oneís fertility before chemotherapy. While not yet addressed by the New Hampshire Supreme Court, the few courts that have considered these issues have treated sperm as either property or quasi-property. See Hecht v. Superior Court, 16 Cal.App.4th 836 (1993) (sperm is quasi-property and part of decedentís estate); Kurchner v. State Farm, 858 So.2d 1220 (Fla. App. 3 Dist. 2003) (sperm is property for purposes of insurance policy coverage). The same rationale should be applicable to stored eggs, although egg cryopreservation technology is so new that the cases have not yet made their way to the courts.

The issue becomes more complicated with regard to sperm or eggs that were obtained from a donor and stored for future use by the recipient. Presumably, sperm from anonymous donors would become part of the ownerís estate at death, because often such sperm is purchased only by one individual, in accordance with the practice of many cryobanks.

With egg and known-sperm donations, however, itís common for the arrangement to vest rights with both of the recipients, and the joint ownership status can factor into determining whether the genetic material becomes part of the estate. If part of an intestate estate with no surviving spouse, would stored vials of sperm be distributed in equal shares to the decedentís children? Most clients would likely find that thought rather disconcerting.

The distribution of sperm or eggs from an estate may need to take into account any prior agreements with either the donor or cryobank, which may limit the permitted uses of these gametes. The existence of such agreements may not be immediately apparent to survivors, and their enforceability is largely unsettled. Itís conceivable that an egg donor Ė say, the sister of the deceased Ė would vehemently object to posthumous use of the donated eggs.

Embryos have typically been considered quasi-property, and courts have taken vastly different approaches to analyzing their ultimate disposition, typically in the context of divorce. E.g., Litowitz v. Litowitz, 10 P. 3d 1086 (Wash. 2000). When the embryos were created with donated eggs or sperm, the same additional complexities arise as with donated gametes. Imagine if a husband and wife die simultaneously, with both of their wills providing that a mutual friend would receive their stored embryos. The egg donorís ability to prevent such a distribution has not (yet) been litigated.

An additional thorny issue arises when the client already has children born from donated genetic material. The client may or may not have told these children about the use of a donor, and the probate process is not a good time for the children to learn about this. Itís important to tailor a solution that takes these kinds of non-legal needs into account.
With any stored genetic material, the practical issue of paying for the storage fees will need to be addressed. Unless permission is provided to the storage facility to discard the genetic materials, storage fees will accumulate indefinitely. If these fees are not paid, the genetic materials will ultimately be deemed ďabandoned.Ē

Most facilities will either continue to store abandoned materials or discard them, but at least one program has indicated a willingness to donate abandoned embryos to other patients for the purposes of procreation. In simple terms, this means that not paying the storage bill could result in another couple using your clientís stored embryos to have their own baby. Thatís probably not what your client envisions happening after his/her death.

The simplest solution is for the client to authorize the genetic material to be discarded upon death, but this may be problematic when any egg donor or a known sperm donor was used. Some storage facilities have been unwilling to discard donated genetic materials without permission from the donor, which may very well be impossible to obtain with an anonymous egg donor. This means that storage costs keep accumulating while this is sorted out. Thus, the estate plan should incorporate the necessary consents from the donor, if possible.
Birth after Death
Scrupulous planning is necessary if a client wishes to permit a spouse to use banked genetic material after death to have children. Because the very nature of the process requires cooperation by the storage facility (which may or may not be a medical clinic), obtaining the release of the genetic material to the spouse can be an insurmountable hurdle if clear instructions were not left by the deceased. As many New Hampshire residents use storage facilities located outside the state, with storage agreements governed by that stateís laws, it is imperative to ensure that the deceased has complied with not only the requirements of New Hampshire law, but also with the laws of the other state.

If a surrogate will be necessary to carry the pregnancy, consideration must also be given to the relevant surrogacy laws related to consent and establishing parentage. This can be extremely difficult if a potential surrogate has not been identified prior to death, because crucial information, such as the expected location of the birth, will not be available.

A related consideration is whether the posthumously conceived child will be eligible to inherit from the deceased parentís estate or through a family trust. Social security benefits will then hinge on whether inheritance is permitted under intestacy laws. Astrue v. Capato, US, 132 S.Ct. 2021, (2012).

A common misconception among attorneys, drawn from the Astrue decision, is that Social Security benefits are not available following posthumous reproduction. The end result actually is highly fact-dependent. See Eng Khabbaz v. Commír., Social Sec. Admin., 155 NH 798 (2007). The reproductive estate plan needs to take into account that posthumous children may not be born until many years into the future Ė is it both practical and possible to keep the estate open to account for these offspring?

If clients donít wish to have children posthumously, but are also not comfortable with simply discarding the genetic materials, other options are available, such as donating the material to others for procreation. Most commonly, people consider this option for embryos; donating eggs and sperm posthumously can be very difficult due to FDA disease-testing rules. If posthumous embryo donation is desired, clients must have the appropriate consents in place as part of the estate plan.

Many patients want to donate their frozen embryos to research, but it is exceedingly difficult to find a program willing to take embryos, so this is rarely a viable option. An acceptable alternative might be to donate them to a medical clinic for training purposes. Again, proper consents (including from any donors) need to be in place as part of the estate plan.

With all disposition options, it is critical to not only have the proper paperwork in place, but also to ensure there are no conflicting provisions in the numerous documents signed during the fertility treatment process. Irregularities are a common cause of litigation in reproductive matters. E.g., K.M. v. E.G., 117 P.3d 673 (Cal. 2005) (genetic mother almost deprived of parental status due to use of incorrect consent form by medical clinic).

Clients should be aware that many storage facilities will require an in-state court order prior to releasing any genetic material following death. A comprehensive reproductive estate plan can simplify this court process.

While a reproductive estate plan cannot guarantee that your clientís wishes will be followed after death, it provides the best possible protections available in this largely unresolved area of law.

Catherine Tucker is a solo practitioner with a practice focused on reproductive law and same-sex legal issues. She handles matters throughout New Hampshire and Massachusetts.

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