Fertility and Your Will

As more and more couples resort to fertility clinics in order to achieve parenthood, storage of sperm, ova and embryos is not an uncommon practice as part of that quest. Under the provisions of the Assisted Human Reproduction Act donor consent is required before those kinds of material can be removed from the body or used for any specific purpose.

So, if you have stored these items what is to happen upon your passing. Can, for example, a stored fertilized embryo be used after the death of any of the donating parties. And what are your wishes as to the retrieval of genetic material upon death or after one becomes incompetent. Can your executor or attorney under a power of attorney for personal care make those decisions. Your wishes should be made clear in this regard.

Suppose as a grandparent you state in your will that if your son or daughter dies before you his or her share is to go to their children. Generally in this circumstance it accepted that a grandchild conceived prior to death would share in the estate. But what about a grandchild conceived after the parent’s death through fertility procedures? Some would argue that a child conceived posthumously stands on the same footing as a child conceived before a parent’s death. It is possible that such a grandchild might be conceived years after the death of one of the donors. That could complicate and delay indefinitely administration of the grandparent’s estate until such time as all beneficiaries can be accounted for. If a parent or grandparent is aware that genetic material has been stored perhaps a time limit for their use can be set out in that person’s will in order to alleviate that concern.

Bearing a child and becoming a parent is a wonderful part of human existence and fertility science has bestowed that blessing on some who otherwise would never share that experience. At the same time it creates legal niceties which need to addressed and if you find yourself in that situation you need to provide that information to your legal representative and if at all possible with parents and other family members who intend to make provision for your children.

This article is not to be construed as legal advice. You are encouraged to consult a professional.