When you finally sit down with an estate planning attorney to create your estate plan, you will likely be asked a series of standard questions that will help your attorney determine what needs and goals you have for your estate plan. One question that has recently become a standard question is “Do you have any genetic material stored?” Not surprisingly, this catches many people off guard; however, in the 21st century, it is becoming an important estate planning concern.
Advances in medicine and technology have come a long way toward helping once infertile couples conceive children. Often, this involves extracting and storing sperm, eggs and/or embryos. Not surprisingly, most couples in the process of realizing the dream of becoming parents are not thinking about legal issues like who owns the stored sperm, eggs, or embryos.
If, however, one of the partners dies, the issue can become the source of confusion or conflict. What happens, for example, if your husband dies in the middle of the infertility process but he still has sperm stored that could be used to fertilize a stored egg and impregnate you? Do you have the legal right to go ahead with the procedure?
Issues surrounding stored genetic material have been litigated in courts throughout the country and as high up as the U.S. Supreme Court. Given the newness of the issues, chances are that they will continue to be litigated for years to come.
One thing you can do, however, to prevent confusion and conflict within your family in the event of your unexpected death is to be sure that you inform your estate planning attorney about any genetic material that you have stored, or plan to store, and make sure that you address it in your estate plan.
The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.