After my husband and I got married last year, we began thinking about starting a family. As we are both men, thus lacking the physiological means to produce children on our own, we turned to modern science for help. To our surprise, the more time we spent exploring the process, the more we realized that, far from being at the vanguard of non-traditional families, we are part of a much broader movement that is redefining the norms of childbearing and childrearing. In fact, the American family has turned some sharp corners since the “nuclear family” had its heyday back in the 1950s and 1960s. Meaningful – if incomplete – strides in gender equality in the home and workforce, changing attitudes toward gay men and women in American culture and advancements in reproductive technology have significantly altered the American familial landscape in the past decade and have ushered in a new era of non-traditional families.

Unfortunately, the adage that the progress of law never keeps pace with the progress of society holds true in this new era. My husband and I quickly learned that to have a baby, we would need to find an egg donor and a surrogate while navigating a complex medical, ethical and legal landscape full of potential pitfalls that made even us, a doctor and a lawyer, dizzy. This commentary explores this landscape and attempts to elucidate some of the complex legal and estate planning issues that arise for individuals and couples using assisted reproductive technology (ART) to produce children.

The What, How and Who of ART

ART generally involves procedures whereby a female donor’s eggs are surgically removed from her ovaries, combined with sperm from a male donor in a laboratory and returned to the body of either the egg donor or a female surrogate to achieve pregnancy. This process is also generally referred to as in vitro fertilization, or IVF. ART helps many men and women, gay and straight, who may not otherwise be able to have children. In fact, according to the Centers for Disease Control and Prevention (CDC), approximately 1.5% of all infants born in the U.S. in 2013 were conceived using IVF procedures, resulting in nearly 68,000 babies born.

The Changing Landscape of the American Family - graphic

My husband and I are not alone among our LGBTQ peers in choosing to use an egg donor and a surrogate to carry our child. According to the Williams Institute, there are nearly 1 million same-sex couples in the United States, of which almost 400,000 are married. Eighteen percent of those same-sex couples 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 their own children.1

Legal Issues Related to ART

Individuals and couples who use ART to create a family face a plethora of complex legal issues. Multiple eggs are often produced and retrieved in an IVF procedure, and many either remain unused or are used to create multiple embryos. Frozen unused eggs and embryos can remain viable for many years and used in subsequent attempts to have children. However, egg donors may impose restrictions on any future use of their eggs or embryos involving their genetic material. For example, the egg donor may include limitations in the egg donor contract on the ability of the intended parent or parents to donate the eggs or embryos to other intended parents, or she may disallow any transfers to third parties, including for scientific purposes, without her express consent. Many of these demands or limitations may be negotiable depending on the donor’s willingness. Moreover, it is important that intended parents carefully read the egg donor contract and consider contingencies, such as if the egg donor dies or becomes unreachable.

In addition, information pertaining to the future use of eggs or embryos in fertility clinic contracts can vary from no mention of the subject to detailed restrictions and limitations. Some fertility clinics contracting with couples may require the consent of both individuals in the couple in order to use any genetic material to create children in the future, even if the genetic material is provided solely by one partner. Many, if not most, clinics will work with the intended parents to add or revise language in the contract to reflect their wishes. Prior to signing with a clinic, intended parents should think through and discuss how frozen eggs or embryos may be used in the event of death or divorce.

Inheritance Rights and Posthumous Conception

State law determines property and inheritance rights, and some states have placed strict restrictions and requirements on such rights when ART is used. Unfortunately, in many states, the laws have not kept pace with the technology and shifting familial landscape. While many do have laws regarding property and inheritance rights for genetic material in the event of divorce or death, they are 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 creator under a will. In contrast, frozen embryos have generally not been treated as property subject to disposition under a will. While some 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. Unfortunately, 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 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 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 his or her death. 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 material used posthumously. Finally, many 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 a genetic parent’s death to be considered a child of that 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 material after death. Second, that authorized person must give written notice of the stored genetic material’s existence 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 wish to use ART to create their families seriously consider how they want their genetic material to be used in the event of divorce or death. Patients undergoing fertility treatments or who contract with storage facilities typically sign consents, authorizations and disposition agreements that the intended parents and their legal counsel should review carefully. Disputes over the legal rights of a divorced spouse or the inheritance rights of a posthumous child often revolve around the conditions of these agreements, which can vary in their terms and comprehensiveness from facility to facility. Therefore, individuals and couples must 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 clarifying that the term child, issue or descendant involves any posthumous child conceived after death through the use of ART.

Conclusion

In short, ART has no doubt opened up an array of opportunities for family creation, but it also presents a number of difficult questions that must be answered regarding the genetic material resulting from its use. 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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1 The legal issues surrounding surrogacy laws and procedures are complex and will be the subject of a future article.