The Inheritance Rights of Children Conceived After Death By In Vitro Fertilization

The Wall Street Journal wrote this weekend on a unique estate planning issue that is becoming relevant to a growing number of families: the inheritance rights of children conceived after one’s death through in vitro fertilization. More people than ever before are cryopreserving their gametes which can then be unfrozen later and used in fertilization. This practice is growing in popularity among cancer patients before undergoing chemotherapy, those in the military, and others in high-risk occupations.

The total number of infants born through use of this technology has doubled in the past decade and the clinics offering this service have increased. For area residents, use of this science may have an impact on their New York estate plan. Many are beginning to question what inheritance rights these children have if their parent passes away before they were conceived? In an effort to provide clarity, more and more states are passing laws defining their rights with regard to insurance, Social Security, trust participation, and similar topics. However, the legal landscape is far from clear.

Families who are considering their options or who have already frozen gametes should take a close look at the forms associated with the procedure. The clinics should clearly explain what happens to the material in the case of the donor’s death. Some families may be surprised that the language in those agreements does not match their intent.

For example, one woman has been engaged in a seven year legal battle with the Social Security Administration in an attempt to get insurance benefits for her son. The child was conceived from frozen gametes used shortly after the death of the woman’s husband. The man signed a contract asking that all the material be transferred to his wife upon death. However, government officials are arguing that there was no record that the man actually intended to father a child. The lesson from this unfortunate situation is to ensure that all details are spelled out in writing in advance.

Charles Kindregan, the author of “Assisted Reproductive Technology: A Lawyer’s Guide to Emerging Law and Science” confirmed that the law in this area is ambiguous. The fact that the law remains in flux makes it is particularly important to consult an estate planning attorney with all questions regarding the rights of late conceived children.

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