Family Law: “Estate Planning Issues with Assisted Reproductive Technology (ART)”

Most people know about the most common ways to become pregnant by means of Assisted Reproductive Technology (ART):  artificial (or assisted) insemination, in vitro fertilization, and gestational carriers.

ART can lead to complex legal issues in a number of areas of law. Anyone who is contemplating building a family by means of ART should be aware of these issues from the perspective of the specific laws in force in the state in which they live.  I recommend consulting an attorney who has experience in this area to assist you in successfully navigating your rights and responsibilities, and achieving your intentions and plans for your family in the future.

Here’s a link for information on Minnesota law (Although it was written well before the legalization of same-sex marriage in Minnesota, it’s a good summary):

http://www.wbdlaw.com/In-the-News/Minnesota-Law-and-Becoming-a-Parent-via-Assisted-Reproductive-Technology.pdf

Recently I read an article by Kristine Knaplund in the ABA’s March/April 2014 publication of Probate and Property. In her article, she outlined three basic issues that could arise in Estate Planning as families consider and undertake building their family through ART. Obviously, before Estate Planning issues are considered, one must pay attention to how each state handles:  contractual agreements between parties, anonymous vs. known donors, involvement of the medical profession, intent of the “parents to be” vs. the rights of the surrogate/gestational parent, and the gender of the two parents, just to name a few of the most obvious. As your family plans for the future, Knaplund’s article covers three important issues that may arise in Estate Planning in particular. So, parents, grandparents, aunts and uncles, this can apply to your estate planning even if you’re not the ones participating in ART.

• Definition of “descendant”:

Typically, a will or a trust will include a definition of “descendant.” When a parent is not genetically related to their child, the definition of “descendant” in testamentary documents (wills and trusts) becomes crucial. Your attorney may want to consider language that expands traditional parentage and adoption to include ART. Your attorney may even address intent, parental behavior (functioning as parents), and the presence of agreements or court orders. And, it’s not just an issue for you but also for your children and their descendants who may use ART in the future. As long as your will or trust doesn’t call for unlawful distribution of your assets, the court will let you decide how your descendants will inherit from you (or not!). But, your definitions must be clear and your intentions must be expressed.

• Potential retrieval and use of sperm or ova after you die:

Two different scenarios: 1) no plan ahead of time, and 2) preservation of genetic material prior to death.  With regard to post-mortem retrieval, it usually comes down to whether the decedent (the person who has died) gave permission or indicated intent. Additionally, facilities can decide for themselves whether they will participate in such requests. So, if you want to protect yourself in such a scenario, ask an attorney to assist you in indicating intent and giving permission to act if an untimely death befalls your family. With regard to preservation of genetic material prior to death (cryopreserved sperm, for example), in short, the issue becomes who owns the material, what was the intent of the person storing it, and who is responsible for continuing to store it.

• Postmortem conception:

This is another issue of written permission and intent of post-mortem (after death) use of genetic material (although in some states, clear and convincing evidence of the intent to become a parent is enough). In some states, whether you are married also matters.  And, in many cases, there are time limits for surviving parent – pregnant within a matter of months or years after death, for example.  And, as most people know, recognition of a child has ramifications for future benefits and inheritance rights, not to mention familial belonging.

Below is a link to the author’s departmental website which will lead you to the article that I refer to in this blog entry: Assisted Reproductive Technology, the Legal Issues (published in the American Bar Association’s March/April 2014 issue of Probate and Property Law) and other articles that may interest you on the subject.

http://law.pepperdine.edu/academics/faculty/default.php?faculty=kris_knaplund&sw=All

If you and your family are considering building your family through ART, talk with an experienced attorney in this area and take the time to understand your choices and the potential issues so you can address them well and avoid unintended consequences for your family.

The Minnesota Legislature is currently considering a bill to address surrogacy laws in Minnesota. Below is a response to a letter by a Minnesota attorney who practices in the area of ART. This bill and the responses to the proposed legislation may interest you.

http://www.nujournal.com/page/content.detail/id/549272/Facts-about-the-Surrogacy-bill.html?nav=5004

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.