It is no secret that more families are turning to IVF to assist in family planning than ever before. In 2014 over 168,000 procedures were performed in the U.S. with that number steadily rising each year. This procedure has provided hundreds of thousands of families with an opportunity they may not have had before the technology became available. Oversimplifying the procedure to the extreme, eggs are retrieved, fertilized, and implanted in the mother to be. If all goes well, a healthy happy child is born 9 months or so later. In some circumstances, eggs that were retrieved in the process but are not utilized are cryogenically frozen and stored for possible later family planning. A family has the choice to continue to store the eggs, donate eggs to research or to others needing assistance with family planning, or opt for their destruction. The forgotten step in the planning process is what happens to eggs held in storage when tragedy strikes the donors.
Regardless of where you stand on the debate of when does life begin, the law as it exists today classifies those unutilized eggs (and in some instances sperm samples) as property of the individuals who allowed for their retrieval. In the tragic event that the donor dies while these items are in storage, that person’s estate would need to distribute this property to the proper heirs. This may not be an issue for some couples, who would want a spouse to be able to continue the process to allow their family to live on even after the family experienced a tragic loss (think military couples planning for the worst upon deployment). But what about the husband who remarries and wishes to utilize his widow’s eggs with a new partner who is unable to conceive on their own? What about a tragic situation where both husband and wife pass in a car accident, leaving only minor children who now must make a decision on what to do with possible unborn siblings? What about a family member charged with being a personal representative whose religious practices or personal beliefs don’t allow them to authorize destruction of the eggs or sperm?
The following scenario recently arose in Michigan: a husband and wife and minor child are involved in a terrible accident where all three pass away. All pass without any estate planning documents (will, trust, etc.) The family had three viable eggs in storage from an IVF procedure. The wife’s family wishes to utilize the daughter’s eggs so that they can have a grandchild. The husband’s family wishes to destroy the eggs immediately due to religious/moral beliefs.
The decision on what should happen to the unused, but still viable results of IVF retrieval are an extremely personal decision to be made by the individual or couple undergoing the process. Failing to incorporate such wishes or instructions in an estate plan could result in that decision being taken out of the hands of those people most equipped to make them, and can place a heavy burden on the estates representatives, who are often close friends and/or family members. Having family members fight over what should be done with the elements of life, or placing a child in the position of having to decide what to do with what could have been future siblings, is a nightmare scenario most people would want to avoid.
These unintended consequences of what begins as a wonderful and exciting family planning process is why a good estate planning attorney must take time to get to know a client and discuss not only their future goals, but understand their present situation. While all individuals should address their estate plan with an experienced estate planning attorney, new parents of all shapes and sizes, and those undergoing, or who have undergone IVF and who continue to maintain eggs or sperm in storage, must not forget to discuss their wishes with an estate planning attorney.
To address your estate plan needs contact the experienced attorneys at Kelly & Kelly Law P.C. to arrange a consultation. From Florida to Michigan, the attorneys at Kelly & Kelly P.C. are here to assist with your Probate, Will, Trust, and Estate planning needs.