Estate Planning and Assisted Reproductive Technology

Experts estimate that more than five million children have been born as a result of Assisted Reproductive Technology (ART), such as in vitro fertilization.  The technology that resulted in such a large number of births has also challenged laws governing inheritance and rights to benefits, when a child is conceived after the death of a parent.

There does not appear to be an issue when it is clear the parents intended to use their preserved eggs or sperm to conceive a child.  However, it isn’t clear when sperm or eggs are frozen and used years later to produce a child that one or both genetic parents did not know about. 

And the issue comes down to money – who inherits or who is entitled a benefits derived through one of the genetic parents.  In the latter case, the Supreme Court heard the case of Astrue v. Capato, brought by a mother against the Social Security Administration to claim benefits for twins conceived after her husband died.   The Court determined that state law should determine eligibility for benefits and held that since the father lived in Florida (which does not recognize posthumously conceived children unless they are mentioned in a will), Capato’s children were not eligible for Social Security benefits for them. About one-third of the states recognize the rights of posthumously conceived children.

There are any number of circumstances that could cause donated sperm or eggs to not be used until after the donor’s death or at any time but not by the donor:

  • Rather than destroying sperm and eggs left over after having a child by in vitro fertilization, they are donated to an unrelated person who then has a child whose has a birth mother and separate, genetic parents.
  • A widow seeks to have children using the deceased husband’s frozen sperm.  The deceased parent may have intended the frozen sperm be used only while he was alive, but left no instructions on when the sperm could be used.  

 Some advisors recommend dealing with the existence of frozen genetic material in the estate planning documents.  The objective would be to acknowledge their existence and to clarify whether later-born children are to be treated as legal heirs.  The documents can also state that later-born children born to someone other than the donors are not to be recognized.  Another option is to put a time limit on use of the genetic material, to avoid a potential use decades later, creating an heir to an estate that has already been distributed!


Law Office of Eileen Guerin Swicker 20 W. Market St. Suite E, Leesburg, VA 20176 Tel: 571-918-0616 Fax: 703-459-9620