Wills and Trusts with Regards to Frozen Embryos and Posthumous Reproduction
by Molly O'Brien

Molly O'Brien is a 3rd year law student at Whittier Law School and wrote this paper for her class in wills and trusts. We thought this information may be useful and interesting to our couples.

GOAL: To determine whether your client has stored genetic material and whether they want any children conceived from this material, how they want the material disposed of, and whether any children conceived from the stored material should inherit.

SCIENTIFIC BACKGROUND:

Gametes – The individual components from a man and a woman that make an embryo. The egg, or oocyte, is the female component and the sperm, or spermatozoon is the male component. These are mature reproductive cells, and when combined develop into a new individual.

Embryos – An embryo is the developing human organism from about 14 days post fertilization (the combining of the gametes) until the period when the organs and organ system begins to develop which is approximately at the end of the second month of gestation.

In-Vitro Fertilization – (IVF) means "in glass fertilization". It is a procedure by which the gametes of the intended parents are joined outside of the body to create an embryo, which is then implanted into the intended mother for a higher chance of successful pregnancy.

Gamete Storage Facility – Using cryopreservation, embryos, or individual gametes, can be stored. The embryos are stored in liquid nitrogen inside "straws" that are placed inside tanks.

Many people who create frozen embryos for assisted reproduction have remaining frozen embryos. Couples have options of what to do with those embryos;

1. Donate the embryos either to another infertile couple or to research.
2. Humanely discard; either defrost the embryos or implant the embryos into the intended mother at an infertile time.
3. Don’t do anything.

Summary Of The Problem That Could Arise

If you have a client who has undergone IVF there is a strong likelihood that they will have frozen embryos remaining. During your client intake you should inquire if they have undergone any procedure, if they have any embryos in storage or gametes in storage. If your client has any of these, then it is important to account for those embryos in the will or trust. The cost of storage of the embryos may be a debt that needs to be anticipated or the disposition of the embryos after the death of one or both of the progenitors will need to be arranged.

I. How to write frozen embryos into your client's will or trust.

First, it is important to point out that your client may have already signed a form with their IVF doctor regarding the disposition of their remaining frozen embryos. If they have signed a form with the doctor's office, ask what year they signed it. As of January 2004, California enacted a new code that states that a doctor providing a patient with fertility treatment must supply their patients with "timely, relevant, and appropriate information" to allow patients to make their own informed decisions regarding what to do with their remaining frozen embryos. Therefore, your client may already have a plan in place with the doctor's office. What they state in the will or trust and what they have told the doctors office should be the same instructions.

Some doctor's offices will also have patients sign release forms that state that if the patient does not pay the storage fees or otherwise abandons the embryos then the doctor's office can destroy the embryos. However, many doctors do not actually destroy the embryos because of both the moral dilemma and the fear that the patient may come back and try to reclaim their embryos. Therefore, your client and or their estate may be responsible for the unpaid storage fees and the embryos may still be around and need to be dealt with since they would be considered property of the estate.

Suggested Language

As suggested from Jerry Cooper on Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, here is some suggested language.
"Children: All references to 'my children' in this trust shall refer only to any child born to or adopted by my husband and I after the date of this trust agreement.
'Any child born' to my husband and I shall include posthumously conceived children by me by means of assisted reproduction whereby I provided the egg and my husband provided the sperm as long as

(1) such child is born during my husband's lifetime

(2) my husband has acted as such child's legal guardian unless he was unable to do so as a result of his death or disability.

On the written declaration of any descendant of me and my husband and subject to any restrictions contained in such written declaration, a posthumously conceived child by means of assisted reproduction whereby such descendant provided either the sperm or the egg shall be considered a child of such descendant and a descendant of the descendant's ancestors."

This example is written as though the Settlor was the wife. However, using interchangeable words such as "spouse" can make this work for a husband, as well. Also, changing the word "trust" to "will" would make this operational in a will.

As a side note, a husband can also have the means of using remaining frozen embryos when the wife has passed away, even though he lacks a uterus. The husband could use a surrogate mother to carry the child. If the wife is your client and does not want the embryos to be used, the will or trust documents should explicitly state that the embryos should not be gestated. If this is the case, have your client dictate the manner in which they wish to dispose of the embryos.

Is An Embryo A Person Or Property?

A moral dilemma exists in defining the legal status of the embryo, as well. Is the embryo a person, or is the embryo property? The several states are split on this, and the Supreme Court has not decided a case regading the legal status of an embryo.

In 1992, the lower court in Davis v. Davis stated that life begins at conception and that embryos are people, not property. In that case, Mr. and Mrs. Davis were a divorced couple and the wife wanted to use their frozen embryos to achieve a pregnancy after their divorce. The Court of Appeal reversed the Supreme Court's decision and while they did not state that the embryos were property per se, the Court of Appeal held that both Mr. and Mrs. Davis had an interest in the embryos. Then the Supreme Court reversed the Court of Appeal decision ruling that the embryo has a status of something in between property and life.

Conversely, York v. Jone held that an embryo is more like property than a person. In that case, the York's had frozen embryos in New Jersey and wished to transport the embryos to California. The clinic in New Jersey refused. The York's had signed paperwork with that clinic where the paperwork referred to the embryos specifically as the property of the York's. The court found the relationship between the York's and the clinic to be that of a bailor/bailee and granted the York's immediate possession of their "property".

With regards to embryo adoption, most states view the embryos to be adopted as a property interest that is going to be transferred. If embryos were to be legally viewed as property, then the controlling law would be that of progenitor's rights and contract law. Scientifically speaking, an embryo does not have a differentiated nervous system and is not sustainable life on it's own. Furthermore, in 2002, the FDA officially defined a human embryo as biological tissue.

There is a trend toward seeing the embryo as tissue with the potential for human life, which is essentially what the court held in Davis. The court went on to further state that when resolving disputes involving the disposition of embryos the court should first look to the preference of the progenitors. If there is a dispute between the progenitors, as there was in Davis, and there is a release form or other written documentation, the presumptive standard is to follow that prior agreement. If there is no prior agreement, the interests of the parties should be weighed.

II. What happens if you have frozen embryos, but you do not include them in your estate plans.

If your client has frozen embryos and they do not dispose of them in their estate, the alternate is that the clients family – aka the brothers and sisters, aunts and uncles, etc of these embryos – will have to decide what to do with their would be siblings, nieces, nephews, or grandchildren. This is an extremely unfair result so encouraging your client to state their wishes is prudent. If there were embryos not accounted for, the embryos would simply pass through intestate succession.

Also, there are storage fees that need to be paid. The storage facility could be considered a creditor to the estate so providing monies for continued storage in the estate can be helpful.

PREVENTION

Simply adding a question to your client intake form can help eliminate this possibility.
"Do you or your spouse have any frozen gametes or frozen embryos in storage"
If yes, then inquire about their plans and ideas for disposition.

III. Can a surviving spouse use embryos after the death of the other spouse?

When a child is born after the death of one or both of the progenitors, the child is deemed to be a posthumous child. Whether a posthumous child can take under a will is a matter that varies form state to state.

Statutory Framework

The Restatement of Property states that a child who is conceived and born AFTER the death cannot be considered an heir. However, if the child is born of genetic material by assisted reproduction, there is a trend toward allowing the child to be an heir as long as the child is born within a reasonable time after the decedents death and the decedent would have wanted the child to inherit.

The Uniform Parentage Act (UPA) states that a parent child relationship exists if the natural mother and natural father were married to one another and the child is born within 300 days of the death of one or both of the natural parents. However, the UPA also states that if a husband dies prior to frozen sperm being used for conception, the deceased father would not be the parent of any child conceived unless there was written documentation stating his intent prior to his death. Therefore, if you have a client who is living in a state that has adopted these provisions of the UPA then have them clearly state their intent in writing once they freeze their semen or their embryos.

As of 2006, seven states that have adopted the UPA have allowed a posthumously conceived child to inherit if there was consent in the record. These states are Colorado, Delaware, North Dakota, Texas, Utah, Washington and Wyoming.

The Uniform Probate Code originally stated that a child that was conceived prior to death, but delivered after death that child will inherit as though they had been born in the lifetime of the decedent. However, as part of the 1990 revision to the UPC, section 2-108 now states that a child "in gestation at a particular time is treated as living at that time if the [child] lives 120 hours or more after birth".

State Law

Some states, such as Massachusetts and New Jersey, have recognized the rights of posthumously conceived children to inherit. On the other hand, other states, such as Florida and California, do not always recognize this right. However, it is important to note that in the California case that did not allow the inheritance, the natural parents were not married. Furthermore, CPC § 6407 states that a child conceived of the decedent prior to the decedents death can inherit. However, CPC § 249.5 states that a child conceived after the death of decedent shall be deemed to have been born during the decedent’s lifetime and after the execution of all of the decedents testamentary instruments (meaning they can inherit) if there is clear and convincing evidence that certain conditions are satisfied. These conditions are the specification in the will must be attested by at least one competent witness, the specification may only be revoked or amended by a signed writing and witnessed, and the person who can use the genetic material must be the spouse or domestic partner of decedent or some other person named in the specification. Moreover, there are additional sections of the CPC that if the decedent does not provide for an omitted child born or adopted after the execution of the decedents testamentary instruments, the omitted child will receive a share equal to that which they would have received had there not been a testamentary instrument. In other words, the omitted child would take the intestate share.

In 2004, California Assembly member Tom Harman launched A.B. 1910, which granted inheritance rights to any child conceived within two years of the death of a parent.
Ultimately, the best solution is to make it clear what the intent of the testator is. Are they comfortable with the possibility of having a posthumous child? Consult the most recent laws from the state you are working in.

As a side note, with same sex parenting as a lawyer you may run into problems because the parents may not be married. For example, some states allow two dads to be on a birth certificate, but that does not automatically mean that the child will have inheritance rights. Again, consult the local laws and write it clearly into the will.

IV. Postmortem Reproduction

Another dilemma for your client may arise if they die and their surviving spouse wishes to extract their gametes for the purpose of postmortem reproduction. The first notable case involving postmortem reproduction was an English case, where a young wife's husband developed meningitis in 1995 and suddenly died. The wife, Diane Blood, had her husband sperm extracted immediately before death, and then again immediately after. The extraction of the sperm was not where Mrs. Blood ran into legal problems, her problems arose when she tried to use the semen. The court in England ruled that she was able to use the semen for an insemination, but she could not do so in the country. Mrs. Blood was inseminated in Belgium and has two children as a result.

The first case in America where a woman became pregnant after using the sperm of her deceased husband was Vernoff v. Astrue. Gaby Vernoff had her husband’s semen extracted 30 hours after he passed and the semen remained in frozen storage for 15 months. Mrs. Vernoff then conceived after doing an artificial insemination procedure using ICSI and a daughter was born. After birth, Mrs. Vernoff filed a lawsuit to have her daughter be eligible for "survivor benefits" because state law presumed that she was not her genetic father's child due to being conceived postmortem.

V. Conclusion

In conclusion, it is best to ask your client thorough questions and specifically provide for all scenarios in their testamentary instruments. Even if you couple thinks they do not have remaining genetic material, they may and they should double check with all medical facilities in order to avoid having their family inherit that genetic material.




BIBLIOGRAPHY


CASE LAW
Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992).
Hecht v. Superior Court, 16 Cal.Rptr 2d 275 (2d Dist. 1993).
In Re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. 2000).
Regina v. Human Fertilisation and Embryology Authority Fam. 151 (ct. of appeal 1999).
Stephen v. Commissioner of Social Security, 386 F.Supp 2d 1257 (M.D. Fla. 2005).
Woodward v. Commissioner of Social Security, 760 N.E. 2d 257 (Mass. 2002).
York v. Jones, 717 F.Supp 421 (4th Cir. 1989).

STATUTORY LAW
UPA § 204 (2002).
UPA § 707 (2002).
CPC §6407 (2009).
CPC §249.5 (2009).
CPC §21620 (2009).
UPC §2-108 (1969).
UPC §2-108 (1990).
CA Health and Safety Code §125315 (West 2004).
A.B. 1910 (2004).

LAW REVIEW ARTICLES
Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses 40 Wake Forest L. Rev. 159 (2005).

Kate Lyon, Student Author, Babies on Ice: the Legal Status of Frozen Embryos Involved in Custody Disputes During Divorce.

SECONDARY SOURCES
17 A.L.R. 6th 593 (2006).

BOOKS
Judith F. Daar, Reproductive Technologies and the Law (Lexis 2006).

Liza Mundy, Everything Conceivable: How Assisted Reproduction is Changing Our World (Anchor Books 2008).

INTERNET RESOURCES
Jerry Cooper, Trust Administrators Tool-Up for Custody and Care of Client’s Genetic Property, The Trust Advisor Blog, (Oct. 9, 2009) (Last Accessed April 25, 2010).

http://www.cryobank.com/Services/Private-Storage-Options/Embryo-Storage/

Karen Synesiou, An Open Discussion – The Dilemma of Remaining Frozen Embryos, http://www.creatingfamilies.com/IP/IP_Info.aspx?Type=174