The American family has turned some sharp corners since the “nuclear family” had its heyday back in the 1950s and 1960s. The choices women and men are making have significantly altered the American familial landscape in the past decade. Assisted reproductive technology (ART) – the technology used to achieve pregnancy in procedures such as in vitro fertilization (IVF) and surrogacy – has fueled the rapid evolution in the ways in which some families are created. As in many other instances, new technologies can lead to unforeseen legal questions and considerations, and ART is no exception, especially with regard to genetic material that can be frozen and remain viable for many years. To give one example, children can be conceived after the death of one or both genetic parents, which raises questions about the ownership of genetic material and the inheritance of assets. This article explores why the use of ART has proliferated, the resulting complex legal landscape related to the use of genetic material and what individuals can and should do from a planning perspective.
The increasing use of reproductive technology is attributable, in part, to large strides – both professional and personal – made by women over the past decades. More than twice as many women are going to college today as in 1970.1 Not only are more women entering the workforce compared with 40 years ago, but the number of women who are the sole or primary breadwinners in their families hit 40% in 2012 – up from just 11% in 1960.2 As a result of these advances, along with a host of other social, personal and economic reasons, women on average are having children at older ages today compared with just three decades ago. According to the Centers for Disease Control and Prevention (CDC), the average age of first-time mothers increased 3.3 years between 1980 and 2012 to 26 years old, driven by the growing number of women waiting until their 30s and 40s to start having children. Indeed, the number of children born to women in the 35-to-39 and 40-to-44 age groups has more than quintupled since 1970.3
Because the likelihood of pregnancy decreases with age (though the degree to which it decreases and at what age is a matter of debate4), many women are turning to IVF to begin their families when they are ready, often at a later age. IVF is a process by which mature eggs are retrieved and either frozen for future use or used to create an embryo that may also be frozen for later use. Some women who decide to have children later in life are also choosing to use IVF to freeze their eggs and store them in an attempt to preserve their fertility and effectively stop the running of the proverbial “biological clock.” In fact, the demand for egg freezing is on the rise; in 2013, 190,773 ART cycles were performed, which resulted in 54,323 live births (one or more living infants) and 67,996 live born infants.5 According to the CDC, approximately 1.5% of all infants born in the U.S. in 2013 were conceived using ART. Some companies are even starting to take notice. This year, Facebook and Apple announced that they would offer to foot the bill for freezing eggs as an additional benefit to female employees.
Women and different-sex couples are not the only demographics driving the increasing use of ART to form families, however. According to the Williams Institute, there are nearly 1 million same-sex couples in the U.S., 18% of whom are raising more than 200,000 children. While same-sex couples are three times as likely as their different-sex counterparts to adopt or foster children, many same-sex couples choose to use their own genetic material, along with the help of a sperm or egg donor (or both) and sometimes a surrogate, to create children of their own.6
For any individual or couple, gay or straight, using ART procedures engenders a plethora of decisions to make. Multiple eggs are often produced and retrieved in an IVF procedure, and many either remain unused or are used to create multiple embryos. These eggs and embryos, if frozen, remain viable for many years and can be used in subsequent attempts to have additional children. Therefore, a child can be conceived after the death of a genetic parent. This possibility has forced many couples to consider whether this is a desired outcome, and if so, how to protect the interests of their posthumously born children in their estate plans. Some questions for consideration are whether an individual can use stored genetic material after a divorce, whether one can bequeath stored sperm, eggs or embryos under a will and whether a posthumously conceived child is considered a descendant under state law in order to inherit from a deceased parent’s estate.
Property and inheritance rights are determined by state law, so there is not a uniform answer to the complex array of matrimonial and estate planning questions ART use raises. In fact, the jurisprudence is anything but uniform. For example, stored sperm has in some cases been treated as property that is subject, within certain limitations, to the ownership, control and disposition of its creators under a will. In contrast, frozen embryos have generally not been treated as property subject to disposition under a will. While some states’ courts have ruled against divorced persons who wish to use a divorced spouse’s genetic material to create a child in order to prevent forced procreation, many states’ courts have not discussed the issue at all.
To date, just over a third of U.S. states have passed laws dealing with posthumous conception. However, those laws vary greatly as well. Some states, such as Minnesota, specifically provide that a child conceived posthumously is not considered a child of the deceased parent. Most of those states that have passed legislation, however, provide that a child conceived posthumously will be considered a child of a deceased parent so long as certain requirements are met. For instance, some states require that a deceased individual must have consented in a record that he or she should be considered a parent of a child conceived using ART after the death of the deceased individual. Some states impose a time period in which a posthumously conceived child can be considered a descendant for purposes of a will or other dispositive instrument; these generally require birth to occur within one to four years after the death of a parent who consented to have his or her genetic materials used posthumously. Finally, many but not all states require a surviving parent who wishes to use the deceased parent’s genetic material to notify the executor or personal representative of the deceased parent’s estate of the existence of genetic material within a certain time period, which can be as short as 30 days, after the death of the deceased parent.
In New York, for example, four requirements must be met for a child conceived after the death of a genetic parent to be considered a child of a genetic parent for purposes of gifts to children, issue or descendants. First, the genetic parent must sign a written instrument, not more than seven years before death, expressly consenting to the use of genetic material specifically for the purposes of posthumous conception and authorizing a person to make decisions about the use of the genetic materials after death. Second, that authorized person must give written notice of the existence of the stored genetic material to the executor or personal representative of the genetic parent’s estate within seven months of the executor or personal representative’s appointment. Third, the authorized person must record the written notice in the Surrogate’s Court within seven months of the genetic person’s death. Finally, the genetic child must be in utero within 24 months or born within 33 months of the genetic parent’s death.
This complex legal landscape requires that individuals and couples who desire to use ART to create their families seriously consider how they wish their genetic material to be used in the event of divorce or death. Patients undergoing fertility treatments or who contract with storage facilities often sign consents, authorizations and disposition agreements that should be carefully reviewed by the intended parents and their legal counsel. Disputes over the legal rights of a divorced spouse or the inheritance rights of a posthumous child often revolve around the terms of these agreements, which can vary in their terms and comprehensiveness from facility to facility. Therefore, individuals and couples should be sure to adequately document their intent regarding the use of their genetic material in the event of divorce and death. Finally, if the wish is to have a posthumously conceived child be considered a descendant of the deceased parent who contributed the genetic material, the estate planning documents should also document such intent. This will generally involve a definitional clause in the estate planning documents that clarifies that the term child, issue or descendant involves any posthumous child conceived after death through the use of ART.
In short, ART has no doubt opened up an array of opportunities for family creation, but there are a number of difficult questions that must be answered regarding the resulting genetic material. Once decisions have been made as to how the genetic material can and should be used or disposed of, individuals and couples should consult with an attorney in order to effectively execute their wishes.
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© Brown Brothers Harriman & Co. 2015. All rights reserved. 2015.
1 Source: U.S. Census Bureau.
2 Source: Pew Research Center analysis.
3 Source: Centers for Disease Control and Prevention (CDC).
5 Source: Centers for Disease Control and Prevention; 190,773 figure does not include 67 cycles in which a new treatment procedure was being evaluated.
6 These numbers do not include gay men and women who choose to have children of their own outside of a coupled relationship.