Estate planning has long focused on financial matters – who inherits what, how much goes to whom and under what restrictions. But beginning in the 1960s, estate planning expanded to include personal choices, such as medical treatment preferences and funeral wishes. Today, a growing area of concern deserves similar attention: assisted reproductive technology (ART) and the disposition of genetic material like sperm, eggs and embryos.
In vitro fertilization (IVF) and ART are no longer rare. According to USA Facts, one in every 42 babies born in the U.S. in 2021 was conceived using ART. From 2012 to 2021, the number of such births grew by 49 percent. A 2023 Pew Research Center survey reported that 42 percent of U.S. adults know someone who has used fertility treatments – up from 33 percent in 2018.
Given this shift, estate planners should ask clients whether they have frozen gametes or embryos. Though this might feel like a sensitive question, it’s essential. Clients often have strong preferences about how their genetic material is used – or not used – after their death.
In IVF, multiple embryos may be created and stored, sometimes for decades. These embryos represent not just future potential life, but also legal and ethical questions for survivors. Who has the right to use them? Should they be donated, preserved or destroyed?
In California, gametes (sperm and eggs) are considered the donor’s property, and the donor’s intent controls their use. Several court cases, such as Hecht v. Superior Court and Robertson v. Saadat, support this. But frozen embryos are different: Under California Health and Safety Code § 125315, both parties to the IVF procedure must sign an “Assisted Reproduction Agreement” (ARA) at the clinic, designating what happens to embryos in the event of death or divorce. Choices include giving embryos to a surviving partner, donating to another individual or research, or allowing destruction.
Unlike embryos, gametes lack a similar statutory form for posthumous use. However, Probate Code § 249.5 allows a child conceived after a parent’s death to be legally recognized, but only under specific conditions. These include written, signed consent by the decedent, designation of the intended user and conception within two years of death.
Estate planners should not rely on assumptions about who might use ART based on age, gender or relationship status. The safest route is to include a question on ART in client intake forms or Advance Health Care Directive questionnaires.
Once a client confirms they’ve used ART, the next step is to obtain their ARA from the fertility clinic and verify that their current wishes match the form. If not, they must execute new directions and provide them to the clinic and their estate planner.
Ultimately, estate planning should include instructions for stored genetic material in both the client’s Advance Health Care Directive and will. This dual approach ensures that reproductive material is addressed both as personal property and within the scope of medical decisions.
In an era where technology intersects with deeply personal choices, including IVF in estate planning isn’t just wise, it’s necessary.
Send your questions to ccolan@colanlegal.com and use “Alpine Mountaineer estate planning question” as the subject. We’ll answer your questions in our upcoming issues. This article is provided by your local estate planning attorney, Corina Colan. The Law Office of Corina I. Colan / (909) 265-3315 / www.colanlegal.com
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