Estate Planning for Test Tube Babies

11/05/2010

A man died of a heart attack in 1997. The following day, his widow extracted sperm from his dead body and had it cryopreserved. A few years  later, she gave birth to a child that was conceived with her egg and her dead husband’s sperm.

Now the interesting part from a legal perspective.  She filed for Social Security death benefits for her child as the surviving dependent of a deceased wage earner husband. Her application was denied.

The matter went to court where the court foundtd a child born to dead man is not eligable for a claim against the man’s estate unless the child was named in the dead man’s will. The court held that the child could not have been a dependent of the man, given that the was not born until four years after the man had died.

With advances in science and techonology, some odd, but interesting questons are being litigated in the estate planning world regarding the proliferation of children born through assisted reproductive technologies such as in vitro fertilization  and intrauterine insemination.

Men have been freezing their sperm since the technology was first developed back in the 1950s. Thirty years later, the technology expanded to include frozen embryos. Currently, couples are freezing all materials of reproduction, from unfertilized eggs to ovarian tissue.

The simplest solution for dealing with the fruits of reproductive technology is to specifically account for them in the estate plan. Just as most estate planners ask couples whether they have signed any prenuptial agreements, questions now need to be asked regarding whether clients have any frozen reproductive material and what they plan to do with it after they die. If his clients say they do have frozen eggs, embryos or sperm, that needs to be taken into account in the estate planning documents, which should specify whether the child born of those products is entitled to a share of the estate.

This is one area where science is ahead of the law.  It’s complicated because a will may say, “I leave my estate to my son’s issue or descendants,” but is an in vitro baby my son’s issue? What about a baby that was born of eggs from the wife but who came from donated sperm?  Is a child born from sperm taken from a dead person killed in an automobile accident considered an heir for inheritance purposes?

People can clearly state in their wills their intentions with regard to frozen embryos and sperm. But what about the children they didn’t anticipate? With advancements in biotechnology making postmortem sperm retrieval possible, these once unthinkable problems could become a reality.

In Missouri, there are no current laws regarding reproductive technology.