When you think about how you want your property to be distributed after your death, most of the time it is easy to identify that property—your home, your cars, your jewelry, etc. But what about the genetic material used in assisted reproductive technology, such as frozen sperm, eggs, and embryos? Is genetic material stored with your doctor or a fertility treatment center considered property that needs to be planned for as part of your estate? Because of the high likelihood that frozen genetic material may survive the person who froze it, many questions arise, such as who owns the genetic material after the person’s death, who can use the genetic material after the person’s death, and can a child conceived after the person’s death inherit from their deceased parent?
Is It Property or a Person?
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, but at least one state (Louisiana) considers embryos “juridical persons” who can sue and be sued and affirms that an embryo cannot be intentionally destroyed. In Arizona, the law 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.
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.
State laws that address the issue of embryos vary substantially. As discussed above, 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.
What Does the Agreement Say about It?
If you signed an agreement with the doctor or fertility treatment center storing your genetic material, this agreement probably details what will happen to your genetic material at your death. For example, the agreement may state that, in the event of both your and your partner’s deaths, your frozen genetic material will be discarded. If only one of you dies, you may also have the options of either preserving the frozen genetic material and letting the surviving partner decide what to do with it or donating it to an infertile couple, in addition to the option of disposing of it.
Either way, there is some debate about whether such agreements are legally enforceable, so regardless of whether you have signed an agreement with the treatment center, 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?
Given that 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. For example, as of 2021, eleven states had 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. If you choose to provide for your after-born children, it is critical that you make this wish known in your estate plan.
And 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.
1. Julie Washington, Are frozen embryos human life? Fertility treatments present ethical dilemmas, Health & Fitness, https://www.cleveland.com/healthfit/2018/04/are_frozen_embryos_human_life_1.html.
2. I Did Not Consent to Further Use of Frozen Embryos—What Are My Rights?, HG.org Legal Resources, https://www.hg.org/legal-articles/i-did-not-consent-to-further-use-of-frozen-embryos-what-are-my-rights-42438#:~:text=Frozen%20embryos%20are%20considered%20property,created%20them%20have%20property%20rights.
3. Wilborn P. Nobles III, Sofia Vergara embryo case could have broader impacts on reproductive law, The Times-Picayune, https://www.nola.com/news/crime_police/article_3529cfdb-e91c-5cbb-86c4-3808fe508d78.html.
4. Alix Rogers, Lamenting the End of the Wild, Wild West?, SLS Blogs, https://law.stanford.edu/2018/09/05/lamenting-the-end-of-the-wild-wild-west/#:~:text=The%20Louisiana%20legislature%20passed%20a,that%20embryos%20are%20juridical%20persons.
5. Stephen C. Hartnett, J.D., LL.M., Who Gets the Embryo?, Amer. Acad. of Est. Plan. Att’ys, https://www.aaepa.com/2010/12/embryo.
6. Avery E. Smith and Ryan K. Fields, What Happens to My Stored Genetic Material after I Die?, King, Spry, Herman, Freund, and Faul, LLC, https://kingspry.com/what-happens-to-stored-genetic-material-after-death/#:~:text=If%20you%20are%20storing%20your,a%20Last%20Will%20and%20Testament. See also What Happens to Frozen Sperm after the Donor’s Death?, Adrian Philip Thomas, P.A., https://www.florida-probate-lawyer.com/blog/2009/march/what-happens-to-frozen-sperm-after-the-donor-s-d.
7. Hartnett, supra note 5.
8. Madeleine Schwartz, Who Owns Pre-embryos?, The New Yorker, https://www.newyorker.com/tech/annals-of-technology/who-owns-pre-embryos.
9. Sharon L. Klein, Who Owns Stored Genetic Material After Divorce?, Fam. L. Mag., https://familylawyermagazine.com/articles/what-family-law-practitioners-must-know-about-stored-genetic-material/#_edn13.
