ESTATE PLANNING AND THE USE OF

ASSISTED REPRODUCTIVE

TECHNOLOGY

Larry Deason and Shawn Garner Estate Planning and Elder Law Attorneys in Yuma Arizona

Estate Planning and the Use of Assisted Reproductive Technology Deason Garner Law Firm 2

For anyone under the age of about 40 it may be hard to believe that just

a century ago people lived without electricity, cars, telephones, and even

indoor plumbing in many cases. The concept of creating a child in

anything but the old fashioned way was likely not even thought of at the

turn of the 20th century.

Today, however, advances in medical science and technology make it possible for infertile

couples and others who would otherwise not be able to have a child become parents. Assisted

reproductive technology, known by the acronym ART, can make the dream of parenthood

come true; however, it can also create some serious estate planning problems if both parents

and grandparents of an ART born child do not incorporate that use of ART into their estate

plans.

WHAT IS ART AND WHEN IS IT USED?

Because assisted reproductive technology is still relatively new to the medical and legal

communities, its definition can vary. The Centers for Disease Control and Prevention, or CDC,

defines ART as “all fertility treatments in which both eggs and sperm are handled.” While this is

a simple definition, it leaves out many procedures that only include either egg or sperm, not

both. Because there are legal ramifications if only one is used, it is best to consider ART any

procedure that handles either sperm or egg.

Although we typically think of ART as being used by couples who are infertile, ART can be used

by other people for other reasons as well. Just a few of the scenarios under which ART is

becoming common include:

To prevent passing on genetic risks

To prevent passing on a communicable disease

In women whose eggs are no longer viable

Storing genetic material if the donor is a soldier and is shipping out to a hostile tour of duty

Single women who choose not to marry

Single men who use a surrogate

Storing genetic material for women who choose to delay motherhood

Same-sex couples

Storing genetic material for a cancer patient prior to beginning treatment

Estate Planning and the Use of Assisted Reproductive Technology Deason Garner Law Firm 3

The number of children born

using ART each year depends on

the definition for ART used;

however, CDC figures tell us that

61,610 babies were born to an

ART procedure using both sperm

and egg in 2011. Using a broader

definition of the term, as many

as 250,000 babies may be born

each year using ART. The use of

ART has doubled over the last

decade and is likely to continue

to grow at an astounding rate as

the technology becomes more

accessible and reliable.

HOW DOES ART IMPACT YOUR ESTATE PLAN?

To understand how ART can impact your estate plan you must first consider the fact that your

genetic material is actually an asset. It is something that can be owned, sold, or potentially

gifted. While this may be difficult to wrap your head around, consider the fact that people are

paid to donate sperm and eggs to fertility clinics. Basically, they are selling their genetic

material and the clinic then owns the asset they purchased. Whether or not it can be gifted is

one of the murky areas of ART and estate planning and will depend on state law. Starting from

the understanding that genetic material is an asset, however, consider the following questions

for an ART user:

Who currently owns your donated genetic material?

Who is paying for the storage of the material?

Is there a storage contract? If so, what happens if the storage bill is not paid?

Who owns the material if you die?

Can you gift the material to your spouse/partner?

Does your spouse/partner have the right to create a child after your death or disability?

If so, is there a time limit?

If you are using someone else’s genetic material (ie: sperm or egg from a fertility bank)

does the donor retain any property rights to the material? What about parenting rights?

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THE DEFINITION OF AN HEIR

Along with figuring out who legally owns your genetic material, or genetic material you are

using for an ART procedure, there is another grey area where ART and estate planning meet –

heirs and beneficiaries. Prior to ART, it wasn’t typically difficult to define “heir.” Usually an heir

means a blood relative. With the use of ART, determining who your heirs are, particularly for

grandparents, can become complicated.

If your son and daughter-in-law decide to have a child using a donated egg because your

daughter-in-law does not have enough viable eggs, is that child your heir? You may not

question that the child is your grandchild, but is he or she your legal heir? The answer may

depend on your state’s intestacy laws; however, the only way to be sure the child is included as

a beneficiary under your estate plan is to include the child by name.

What if that same son and daughter-in-law, instead of using donated eggs, decide to bank

sperm because your son is going into combat. Upon his return, they decide to divorce and your

now ex-daughter-in-law is granted ownership of the sperm pursuant to the storage contract or

the divorce decree. If she pursues a pregnancy through ART, is that child your heir? Do you

want the child to be considered your heir? Again, the best way to make sure that you know the

outcome of a situation like this is to incorporate your wishes in your estate plan.

DO I NEED TO INCLUDE ART PROVISIONS IN MY ESTATE PLAN?

Anyone who is currently using ART, or who is considering the use of ART in the future, should

consult with an estate planning attorney before any genetic material is harvested and stored.

In addition, if you are a grandparent of a child born through the use of ART, or you foresee

even a remote possibility that a grandchild could be born using ART in the future, you too

should consult with an estate planning attorney. Some day in the future it may become

commonplace to include provisions in all estate plans dealing with ART born children; however,

for now you must be proactive and make sure that your wishes, and your children or

grandchildren are protected by letting your estate planning attorney know that ART plays a role

in your family.

REFERENCES

Resolve, The National Fertility Association: Three Questions to Ask Your Lawyer When Using

Assisted Reproductive Technology

Centers for Disease Control and Prevention: What is Assisted Reproductive Technology?

Forbes: 10 More Estate Planning Questions That Might Make You Squirm

Estate Planning Digest: Things to Consider on Artificial Reproductive Technology

Estate Planning and the Use of Assisted Reproductive Technology Deason Garner Law Firm 5

About the Authors

Larry Deason and his staff have been providing quality legal services for clients since

1971. Their mission is to assist people who are concerned about protecting their families

from the devastating legal and financial impacts of disability, death, and taxes.

Because he believes in the importance of an informed public, Deason spends

considerable time educating consumers about Estate Planning issues. He writes a

monthly Estate Planning column in The Sun, and he regularly conducts seminars on

various Estate Planning topics.

Deason and his staff believe that in many instances Living Trusts offer clients a proven

and powerful tool for protecting their families from the expense and delay of probate, as

well as a strategy for eliminating or minimizing federal taxes.

Deason’s firm is staffed with paralegals and consultants who are experienced and trained

in a variety of Estate Planning areas. The aim of each member of the firm is to help

clients accomplish their Estate Planning goals while taking the mystery out of the whole

process. We take pride in knowing that our clients feel “peace of mind” once the planning

process is completed.

In 2008, Mr. Garner began practicing law in Yuma in the fields of commercial litigation

and bankruptcy. In 2011, Mr. Garner switched his field of practice to exclusively estate

planning because he found it more rewarding to help people avoid the costs and stresses

associated with litigation more than trying to resolve disputes through litigation and court

intervention.

Larry Deason

Shawn Garner

Deason Garner Law Firm 242 West 28th Street, Suite A

Yuma, AZ 85364 Phone: (928) 783-4575

www.DeasonGarnerLaw.com