Using Assisted Reproductive Technology: What Happens to Unused Genetic Material at Your Death?

The use of genetic material, such as frozen sperm, eggs, and embryos, in reproductive technology creates unique issues in estate planning. Is that material considered property that needs to be planned for as part of your estate? Is it like your home, your cars, your jewelry? Who owns the genetic material after the person’s death? Who can use the genetic material after the person’s death? Can a child conceived after the person’s death inherit from their deceased parent?

Is It Property?
Some controversy exists about whether a frozen fertilized egg, or embryo, is human life. Some people believe that life begins at fertilization while others believe that a frozen embryo is not human because it cannot develop into a fetus outside the uterus. While state laws vary, most states consider frozen embryos to be property. Louisiana considers embryos “juridical persons” who can sue and be sued and affirms that an embryo cannot be intentionally destroyed. Arizona gives a party wishing to use a frozen embryo for reproduction purposes decision-making authority in any conflict over how the embryo is to be used. Michigan law, like that of most states, is unclear.

Who Is the Owner?
When a person dies and leaves behind frozen sperm, eggs, or embryos, who owns the genetic material after the person’s death and who can use it? While the answers vary from state to state, in general, there is a distinction between who owns and controls gametes (i.e., eggs and sperm) as opposed to embryos. Your sperm or eggs are generally considered your own individual property, and therefore your intent as to how gametes are to be used controls their disposition after your death, so if you intend to allow your frozen genetic material to be used for reproduction after your death, you should make your intent clear in your estate plan.

States vary substantially in their laws that address the issue of embryos. In Louisiana, an embryo is considered a legal person and cannot be intentionally destroyed. In Florida, however, any written agreement controls the disposition of the frozen genetic material. In the absence of an agreement, the person who provided the gametes controls their disposition, whereas a couple jointly decides the disposition of their embryo. If one member of the couple dies, the surviving member makes all decisions about the embryo’s disposition.

Is There a Signed Agreement?
If you signed an agreement with the doctor or fertility treatment center storing your genetic material, the agreement probably details what will happen to your genetic material at your death. For example, the agreement may state that, in the event both you and your partner die, your frozen genetic material will be discarded. If only one of you dies, you may also have the options to either preserve the frozen genetic material and let the surviving partner decide what to do with it, donate it to an infertile couple, or dispose of it.

There is some question as to whether such agreements are legally enforceable. So it is important to (a) have a detailed discussion with your significant other about what you want to happen to your genetic material after your death, (b) memorialize it as part of your estate plan, and (c) make sure that the agreement and your estate plan are aligned.

Can an After-Born Child Inherit?
Since frozen embryos can be safely preserved for decades, another question that arises with frozen genetic material is whether a child conceived after a parent’s death is entitled to inherit from the deceased parent. Prior to the advances in reproductive technology, most state laws allowed a child born within ten months of their parent’s death to inherit, and children born after that time were usually excluded. In the last few years, state legislatures have begun enacting laws that deal more specifically with the issues raised by new technologies. Some states have adopted a version of the Uniform Parentage Act which provides that, if the deceased person consented to being the parent of a child resulting from assisted reproduction after their death, the deceased person is considered the child’s parent. Michigan has no such law, although legislation was introduced in the last few years. It is critical that if you wish to provide for your after-born children you make this wish known in your estate plan.

If you choose to provide for after-born children, other questions arise about how you will provide for them. For example, will any after-born children inherit equally with the children born during your lifetime? If so, will you purchase life insurance with this purpose in mind or allocate some of your assets to be set apart for any after-born children?

Because so many serious questions surround genetic material and its use after a person’s death, it is important to consult an experienced attorney who knows your state’s genetic material laws and can competently advise you on how those laws affect you and your estate plan. If you have questions about how using assisted reproductive technology will impact your existing estate plan or would like to craft a plan to address these concerns, call us to schedule an appointment.