ARTIFICIAL
REPRODUCTIVE TECHNOLOGY AND YOUR ESTATE PLAN ART Raises a Number of Estate Planning Considerations for Anyone Who Plans to Use It to Conceive a Child Now or In the Future
MICHAEL ROBINSON NEW YORK ESTATE PLANNING ATTORNEY
A century ago, an infertile couple, a same-sex couple, a woman whose biological clock has wound down, or an unmarried individual had little hope of realizing the dream of parenthood. For the infertile couple, adoption was an option; however, not for an unmarried individual or for a same-sex couple. Today, thanks to advances made in the intervening 100 years, people who once had to give up their dream of having a child now have hope. That hope comes in the form of artificial reproductive technology, or ART. Ethical, moral, and religious issues aside, ART raises a number of estate planning considerations for anyone who plans to use it to conceive a child now or in the future. Furthermore, if you are a grandparent of a child born through ART, you too need to consider the estate planning repercussions of the use of ART to bring your grandchild, or any future grandchildren, into the world.
WHAT IS ART? As is often the case when a concept is in its infancy, a universal definition for the term “artificial reproductive technology” has yet to be accepted. According to the Centers for Disease Control and Prevention, or CDC, ART includes “all fertility treatments in which both eggs and sperm are handled.” For estate planning purposes, however, it is best to consider all procedures where either sperm or egg, or both, are handled to fall within the realm of ART.
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HOW COMMON IS THE USE OF ART? Although the use of ART is still relatively uncommon, it has doubled in the last decade according to the CDC. In the United States alone, there were 61,610 live births as a result of the CDC definition of ART in 2011. Using a broader definition of the term, it is estimated that as many as 250,000 babies are born using some form of ART each year. Regardless of the definition used for ART, experts all agree that the use of technology to assist in the birth of children will continue to grow exponentially in the coming decades.
ART AND YOUR HEIRS Until recently, the legal definition of an heir was rather simple. With ART in the picture, it can become murky. If you are the parent of a child born through ART, then you will likely include that child by name in your estate plan; however, what about the child’s grandparents? Is your ART born child considered a legal heir of his or her own grandparents? Consider this possibility: You and your husband decide to use donor eggs because you waited too long to have a child and you are now unable to conceive using your own eggs. Although you carry the child, birth the child, and consider the child yours, the child was not actually created using your own genetic material. Therefore, under state intestacy laws the child might not be a legal heir to your own parents’ estates. An after born child can also create a grey area where heirs are concerned. Prior to ART, the only way that a child could be born after your death is if a
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woman was already pregnant with your child when you died. Now, however, there is another possibility: Imagine that you have agreed to donate sperm because you are in the military and are being sent to a hostile zone. Though you return home without incident, you forget about the sperm donation. You and your wife separate and you are killed in a car accident three years later. Your wife legally owns the donated genetic material and decides to have a child. Is that child now your heir? Is the child an heir to your parents’ estates? Do you want the child to be considered an heir?
OWNERSHIP OF ART Any of the more complicated estate planning issues that come about with the use of ART depend, to some extent, on who owns the genetic material used for ART. You may assume that you continue to have ownership rights to donated egg or sperm; however, that may not be the case. Some questions to consider before you donate genetic material include: What does the written contract say about ownership of the material? Who is paying the bill to store the material? What happens to the material if the bill isn’t paid? Who owns the material if you die? Does it become an estate asset? If you are using someone other than your partner’s donated genetic material (ie: an anonymous egg or sperm donor), do they retain any
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rights to the material? Can you gift donated genetic material in your Will or does it revert back to the donor?
GENETIC MATERIAL AND YOUR DEATH Some of the most difficult legal issues arise when the donor of genetic material dies. For this reason alone, anyone using ART must consult an estate planning attorney to determine what changes or additions need to be made to their estate plan. In theory, a child of yours could be born years, even decades, after your death with genetic material frozen prior to your death. Do you want to allow that and do you want that child to inherit from your estate if allowed? Many of these same issues concern grandparents of children born using ART. Just to further complicate an already complicated issue, the intestacy laws in the state where you live will answer many of these questions if they are not answered in your estate plan—and those answers can vary dramatically from one state to the next. As is often the case, the law is slow to catch up with the leaps and bounds being taken by medical science and technology. Therefore, the only way to handle the uncertainty in the law is to ensure that your own estate plan is as specific and thorough as possible when it comes to the issue of children, or grandchildren, born through the use of ART.
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Resolve, The National Fertility Association: Three Questions to Ask Your Lawyer When Using Assisted Reproductive Technology Centers for Disease Control and Prevention: What is Assisted Reproductive Technology? Forbes: 10 More Estate Planning Questions That Might Make You Squirm Estate Planning Digest: Things to Consider on Artificial Reproductive Technology
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About the Author Clients notice Michael Robinson’s unique approach to his estate planning practice the minute they walk through his office doors. Mike has established a law practice that provides clients with a warm, comfortable and relaxed atmosphere staffed by professionals who believe in providing highly individualized attention. That’s especially important in Mike’s practice, because estate planning is an often personal process reflecting the most cherished hopes and dreams of his clients. “The estate planning we do for our clients,” Mike explains, “often represents the culmination of their life’s work. That’s why we take a personal interest in helping them complete estate plans that suit their needs and that address the unique circumstances of their families.” There’s one last difference clients often remark upon in Mike’s estate planning practice. “Because we concentrate on estate planning exclusively, we have the focus to bring state-of-the-art, cuttingedge estate planning techniques and strategies to a broad range of clients, no matter how diverse.” Mike’s firm has the breadth of expertise to provide its clients with estate plans ranging from the basic to the very sophisticated, including offshore asset protection trusts. His office regularly conducts seminars on estate planning topics throughout the Rochester and Finger Lakes area. Mike has also been a guest speaker on the subject of estate planning before a variety of professional organizations. The Law Office of Michael Robinson, P.C. 196 North Main St. PO Box 417 Naples, NY 14512 www.mrobinsonlaw.com Phone: (585) 374-52 Fax: (585) 374-9327
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