Advancements in Reproductive Technology Raise Estate Planning Issues

Carole M. Bass, Esq.
Published Date:
Jul 1, 2014

Massive scientific advancements in the field of reproductive technology—coupled with delays in childbearing, the growth of nontraditional families, and increased success rates in cancer treatment—have resulted in rapid growth of the use of assisted reproductive technology (ART). In 2012, the American Society of Reproductive Medicine removed the “experimental” label from egg freezing, signaling an anticipated expansion in the number of women who will harvest and store unfertilized eggs for later use.   

According to a 2002 study, approximately 400,000 embryos are stored in the United States. Given that the use of ART has doubled in the last decade, according to the Centers for Disease Control and Prevention, it is fair to assume that the number of stored embryos is actually much greater now. As the use of ART continues to grow, so will its impact on both estate planning and estate administration. The first question to ask is: “Were any of these embryos created by your clients?” 

Disposition of Stored Genetic Material at Death

Can an individual bequeath stored sperm or eggs (i.e., gametes) or stored embryos at death? Although there has been some hesitancy to characterize gametes and embryos as “property,” courts have accorded them property-like characteristics, and a decedent generally has dispositional authority over stored gametes and embryos.

Because this is an emerging area of law, however, there are still unanswered questions regarding the ability to bequeath gametes and embryos by Will and the enforceability of clinic agreements providing for the disposition of gametes and embryos at death. Only a few states have statutes that specifically address this issue. Many clinics require an individual to sign forms directing what will happen to stored gametes or embryos in the event of death or divorce. In the event of a conflict between an individual’s Will and the clinic agreements, the clinic agreements will likely control. 

The most important step toward ensuring that an individual’s wishes for stored gametes or embryos are carried out at death is properly documenting them, both in traditional estate planning documents and in clinic forms. 

Disposition upon Divorce

Most of the litigation concerning disposition of embryos has involved divorcing parties who disagree on such disposition. Courts across the country have considered the issue of what becomes of the embryos in such a case.   

Until recently, the universal result, regardless of the theory applied, was that no party had been awarded embryos for reproductive use over the current objection of the other party. Then, in the 2012 case of Reber v. Reiss, the court awarded banked embryos to one genetic contributor over the objections of the other. InReber, the parties did not have an agreement regarding disposition of embryos in the event of divorce. The court held that the wife's interest in procreation outweighed the husband’s interest in avoiding procreation because the wife could not achieve biological parenthood without the use of the embryos (due to a medical condition).

In 1998, New York's highest court held that the disposition of stored embryos is governed by the express agreement of the parties, where such an agreement exists (Kass v. Kass). The court refused to award the embryos to the wife over the husband's objection in a case where the parties' clinic agreement provided that the embryos would be donated to science in the event of death or divorce. It is uncertain whether the result would have been different if the agreements had provided for possession and use by one of the parties. 

Inheritance Rights of Posthumously Conceived Children

Gametes and embryos can be preserved for later use, enabling conception to occur after the death of a genetic parent. The resulting children are generally referred to as “posthumously conceived children.”

Case law in this area has developed principally through claims for Social Security survivor benefits for posthumously conceived children. As of 2011, the Social Security Administration reported receiving more than 100 applications for such benefits. In 2012, the Supreme Court held that eligibility of a posthumously conceived child to receive Social Security survivor benefits is determined not by proof of biological parentage, but by reference to applicable state intestacy law (Astrue v. Capato, in wich the child did not reach the next prong of the eligibility requirement under the Social Security Act—namely, dependency on the deceased wage earner). 

Most states, including New York, do not expressly address intestacy by posthumously conceived children by statute. Section 4-1.1(c) of New York’s Estates, Powers and Trusts Law (EPTL) has not been modernized to deal with ART and provides that “distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.” Dicta in Capato indicates that the New York statute does not permit inheritance by a posthumously conceived child. Footnote 9 of Capato is consistent with New York's "pretermitted heir" statute [EPTL section 5-3.2(b)], which generally permits a child born after the execution of a Will (and thus not named therein) to inherit if the testator’s other children are named in the Will or if the testator had no children when the Will was created; however, EPTL section 5-3.2(b) expressly excludes posthumously conceived children.

If a Will provides for class gifts to “children,” “issue,” or “descendants” but does not define whether posthumously conceived children are included, what is the result? In New York, where posthumously conceived children are not recognized for intestacy and are not recognized as pretermitted heirs, there is a case that includes posthumously conceived children within a class gift to descendants. In Matter of Martin B., the New York County Surrogate’s Court considered a number of trusts created in 1969 for the benefit of the grantor’s children and grandchildren. The grantor’s son had died in 2001, leaving behind cryopreserved sperm that his widow used to become pregnant, resulting in the birth of a son in 2004 and the birth of a second son in 2006. The trustees brought an action to determine whether these two sons qualified as the grantor’s issue or descendants. The court held that the children should be included.

Choice-of-Law Issues and Same Sex Marriage

One of the many issues raised by section 2 of the federal Defense of Marriage Act (DOMA), which allows states to refuse to recognize same-sex marriages validly performed under the laws of other states, and by state laws that prevent same-sex marriages to be performed in the state is the recognition of parent-child relationships from state to state, where such relationships are based on the marital status of the parents.   

For example, under section 73 of the New York Domestic Relations Law (DRL), if a married woman conceives via artificial insemination (AI) through an anonymous donor, with the written consent of both herself and her spouse, and the AI procedure is performed by a licensed physician, there is an irrebuttable presumption that the spouse is the second parent of the child. Under New York State's Marriage Equality Act, this presumption extends to same-sex married couples. Thus, a child born to a married lesbian couple in New York—where one spouse conceived via AI with donor sperm, in the manner provided by DRL 73—is presumed to be the legal child of both spouses. But what happens if this couple moves to a nonrecognition state, such as Florida, or if the nongenetic parent has a family member living in a nonrecognition state?

Because not all states recognize same-sex marriages performed in other states, there is a concern that the presumption of parentage would not be recognized in other states for all purposes, including inheritance. Thus, ART practitioners generally recommend that the nonbiological parent adopt the child to prevent any ambiguity. Although the "public policy exception" to full faith and credit permits states to refuse to honor another state's statutes and records, it does not extend to court orders and judgments; therefore, an adoption order or order of parentage from one state must be respected in another state.

In a Jan. 6, 2014, decision, however, Kings County Surrogate Lopez Torres held that the court would not entertain a petition for adoption by the nonbiological parent/spouse “to affirm an existing, recognized and protected parent-child relationship between the petitioner and her son” (Matter of Seb C-M). Surrogate Lopez Torres went on to state that if the purpose of the petition was to secure protection of the family relationship in a nonrecognition state, the petitioner would need to seek redress in that forum.

It is clear that careful drafting in estate planning documents is essential in order to prevent ambiguities with respect to who will be considered as an individual's child or descendant.

Carole M. Bass, Esq.Carole M. Bass, Esq., is a partner in the trusts and estates, and matrimonial and family law practices at Moses & Singer LLP. Her work includes advising clients on estate-related issues involving the use of ART, and she has written and lectured extensively on this subject. Ms. Bass is a past co-chair of the Bioethics Committee of the ABA Real Property Trusts and Estates Law Section and a current member of its Continuing Legal Education Standing Committee, as well as vice chair of its Committee on Non-Tax Issues Affecting the Planning and Administration of Estates and Trusts. She is also a member of the Estate and Gift Tax Committee of the New York City Bar Association. She can be reached at 212-554-7877 or

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