Posthumous Reproduction

Posthumous or “after death” reproduction is now an issue to be dealt with by individuals and couples who have cryopreserved or frozen their genetic material at their fertility clinic. It is also relevant if you die suddenly and unexpectedly and it is your wish that your eggs or sperm be used so your spouse or partner (or if necessary surrogate) can give birth to your children after your death. If you have frozen your sperm, eggs, or embryos, you should be concerned with what will happen to your genetic material at your death. Divorce and the disposition of cryopreserved genetic material is an entirely different topic I will cover in another blog post soon.

Your fertility clinic will require that you sign a cryopreservation or storage agreement with them. This agreement is required so the clinic knows what disposition to make regarding your frozen genetic material if you die, separate or divorce. Regarding disposition at your death, your choices are you can direct that your gametes and/or embryos be destroyed, be donated to an individual or couple for reproductive purposes, be donated for scientific research or be donated to a specific individual or individuals.  You may wish to prioritize the order of what you want done with your frozen genetic material at your death.

It is important that you take your time in completing the clinic’s storage agreement. It should be consistent with your Will and consultation with an attorney experienced in assisted reproductive technology (ART) law and/or estate planning is advisable. Because frozen genetic material is considered a special class of personal property, your Will controls its disposition and it should direct in detail what you want done and how regarding your frozen gametes. The instructions in your Will should be consistent with the storage agreement you complete. 

In addition, you can also enter into a parental rights agreement with your partner or spouse, regarding the disposition of your genetic material most particularly frozen embryos. Most states have no laws dealing with posthumous reproduction.  There are some reported case decisions but there is no uniform body of law since the decisions are inconsistent. There is also no applicable federal law.   

The other side to posthumous reproduction concerns the retrieval of gametes from the decedent’s body shortly after death. To help reduce legal complications, anyone who believes their gametes should be retrieved from their body shortly after death should complete detailed written instructions so that it is clear this is what you want. This is especially important if you are terminally ill or suffering from a life-threatening illness or injury. These written instructions must be immediately available as should a copy if not the original of your signed and notarized Will. Retrieval of sperm must be completed within 24 hours so the retrieval phase is extremely time-sensitive.   As a rule, next of kin, will need to consent to retrieval. Your personal representative nominated in your Will must also be briefed so he/she knows what to do at your death. The Uniform Anatomical Gift Act (the “Act”) in your state is relevant to retrieval because it arguably authorizes your agent (if any) or next of kin to consent to the donation of your human tissue and organs.  Gametes by definition are human tissue. However, the Act was not written to deal with posthumous reproduction issues. 

You will also need to locate a cooperative urologist who can accomplish the retrieval quickly. Some and perhaps many health care providers will not want to cooperate with the post death retrieval of sperm or eggs. In this case, you will need legal counsel to work with you very quickly to obtain an emergency court order directing retrieval. Usually the local probate court will be involved. A recent case in Denver which the media reported on, concerned the unfortunate death of a young man whose girlfriend sought the retrieval of his sperm so she could carry his children. The decedent had sent her text messages about what he wanted done with his sperm if he died, but nothing else in writing existed regarding the decedent’s wishes. In this case, the decedent’s parents were his next of kin. They were devastated at his death and not able to actively assist the girl friend to facilitate the retrieval of the decedent’s sperm.  

Other posthumous cases concern accident victims, victims of crimes and those who are terminally ill.  These cases are all fact specific and it is impossible to predict if the health care provider in possession of the body will cooperate with the retrieval. It is possible if not likely they will be more cooperative with the decedent’s spouse than romantic partner. This is a complex area of the law still developing since the science almost always outpaces the law. Retrieval must occur very quickly if the gametes can be used for productive purposes.  Consultation with knowledgeable and experienced ART counsel is critically important to facilitate the retrieval of gametes post death.  

Advanced planning is highly recommended. Schedule your free consultation with Attorney Husson today!

Attorney Husson presented this topic to the medical staff, The University of Colorado, Department of Obstetrics & Gynecology, Advanced Reproductive Medicine Division, June 14, 2017.

What Should Your Attorney Do for You and Your Gestational Carrier?

1 in 8, or 7.4 million women have had to seek help for their infertility during their lifetime.

Sometimes, intended parents choose to utilize a gestational carrier (GC), also known as a surrogate. It is estimated that more than 35,000 children have been born by surrogates. Whether you are an unmarried or married intended parent struggling with infertility or other family formation issues, it is important that you have competent experienced legal representation when using a GC. One important indicator of competency is to determine if the attorney you are considering is a Fellow of AAARTA (The American Academy of Assisted Reproductive Technology Attorneys) or the American Bar Association’s Legal Professional Group for Assisted Reproductive Technology Law. You should speak with ART counsel before you are formally matched with a GC. Discuss your legal costs in detail and some of the many legal issues related to surrogacy, such as the financial consideration to be paid to your GC. Request a written fee quote from your attorney before you sign the fee agreement.

As an intended parent, your attorney will counsel you regarding the applicable surrogacy law. The surrogacy laws in Colorado are friendly. In other states such as Michigan and New York, they are unfriendly. Also, you should if possible hire legal counsel who has health insurance expertise and experience, and is able to advise you if the gestational carrier’s health insurance policy will cover her maternity expenses as a GC. Most ART attorneys do not have this experience. Regardless, you should be referred to an experienced insurance professional who can evaluate your GC’s health insurance policy.

If your GC’s health insurance policy does not cover her maternity expenses, then you should work with your attorney to consider the purchase of insurance coverage from a broker who specializes in ART insurance products. Your attorney should work with you on a flat or fixed fee basis. Your attorney’s fees will be fixed and you avoid the risk of expensive legal costs if your case results in many hours of billable time. There can be exceptions to this for international cases. Typically, the intended parents’ attorney will draft the GC contract. On occasion, legal counsel for the GC will do the drafting.   Regardless, the drafting attorney should be licensed in the state whose law will govern the surrogacy contract. This is customarily the state in which the surrogate resides and where the baby will be born.

The use of a professional escrow manager will help ensure that the GC is paid on time and efficiently. ART counsel should discuss this issue with his/her clients, whether the GC or Intended Parents. A sufficiently funded and professionally managed escrow account will protect all parties. Relying on the intended parents’ word they will pay is risky but many GCs proceed this way. It is risky not because the intended parents will intentionally not pay the GC. It is risky because the intended parents could die, become disabled, lose their employment, suffer an IRS tax lien or other misfortune which will result in the GC not being paid.

Bed rest is often a big issue. If the GC is medically ordered to bed rest by her physician, how will her lost wages and child care costs be paid by the intended parents? Normally there is a cap on lost wages and child care? Does the GC have disability insurance and will it cover lost wages due to her pregnancy and if so how much and for how long.  Child care expenses can be significant if the GC does not have a strong family support system. A GC’s hospitalization if lengthy can result in costly child care expenses. Lost wages can also be significant including wages lost by the GC’s husband caused by medically ordered bed rest.

In non-agency cases, the intended parents’ attorney may be asked to help manage the surrogacy process. Competent ART agencies are invaluable in facilitating the surrogacy process. However, many intended parents locate a GC without agency assistance to avoid paying expensive agency fees. Also, some intended parents will use close friends and relatives as their GC. Known as a compassionate or non fee surrogacy, legal counsel should still be retained.

ART counsel should counsel his/her clients regarding abortion and selective reduction issues and ensure they are carefully covered in the contract. Both the GC and the Intended Parents should have similar ethical views to avoid future problems.

The Intended Parents’ parental rights is a critical issue. Their legal counsel will advise them regarding their parental rights and what formal legal action is necessary to protect these rights. In Colorado, a pre-birth parentage action should be filed in district court by week 20 of the GC’s pregnancy. This will formalize the intended parents’ parental rights.

If a significant legal problem develops, the Courts may look at the parties differently if they are not represented by counsel. The intended parents may waive legal counsel if the clinic approves this, but it is not advisable. Many fertility centers insist that all parties have independent legal counsel. The GC and her husband should always be represented, in fact, some states’ laws mandate this.

The surrogacy contract is complex and technical. A contract dealing with the creation of human life should never be taken lightly. Partnering with a competent and compassionate attorney, specializing in ART law will help to ensure a smoother process while building your family.

What other questions can Attorney Husson answer for you?