As recently as a generation ago, infertile couples had very few options other than adoption. Single individuals and same-sex couples who dreamed of becoming parents typically did not even have that option. Thanks to changing societal norms, and advances in artificial reproductive technology, or ART, the options are now numerous and ever expanding. In fact, about 250,000 children are now born each year through ART, which includes artificial insemination, egg and embryo donation, and post-death gamete harvesting or conception. These new technologies, however, bring with them some complicated legal issues for the children and families, particularly in the area of estate planning.
ART often includes the storage of genetic material. Although you may not think of it this way, your genetic material is property. If you die, who owns that genetic material? More importantly, did you consent to using your genetic material to conceive a child after your death? Or did you fail to address that possibility, making it possible? If so, is that child an heir of your estate? Is he or she a dependent for purposes of a retirement plan? What if the child is a grandchild, not a child? Do you want a grandchild conceived through ART to be considered an heir? Conversely, what if you use donor material and the donor asserts parental rights down the road?
These are all complicated questions that do not have universal answers in part because the law is struggling to keep up with technology and in part because state laws determine the answers. If you are using ART, or plan to in the future, be sure to consult with your estate planning attorney early on.
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