Starting the IVF process opens a world of excitement and hope for many couples. Amidst the anticipation, a sometimes uncomfortable reality emerges: what happens to the remaining embryos, if one or both parents die? What about unfertilized eggs or frozen sperm? This issue has become prominent enough that California enacted default rules (California Probate Code 249.5 et. seq.) for embryos allowing a preserved embryo resulting in a live birth within two years after the issuance of a person’s death certificate to qualify as the child of the biological donor for inheritance purposes.
A Deeply Personal Decision
This is a deeply personal decision with strong opinions on all sides. The issue can even become legally complex, as seen in recent court cases. Given the sensitivity involved, the best course of action is to include your wishes for your embryos and genetic material in your estate plan.
Considering Your Options
There are several ways to handle embryos and genetic material after your death:
- Disposal: You may choose to have unused embryos, unfertilized eggs, or sperm disposed of.
- Donation: Another couple struggling with infertility might benefit from your egg, sperm, or embryo donation.
- Continued Use: In some cases, depending on your state laws and prior agreements, the surviving partner may be able to use the banked reproductive materials to complete their family.
Open Communication is Key
This is a conversation to have with your partner and San Diego estate planning attorney. Don't be afraid to share your honest feelings and concerns; we've heard them all before, and our job is to help you find a solution that brings you peace of mind.
Addressing Specific Scenarios
The California Health and Safety Code empowers individuals with stored biological materials to make an enforceable directive expressing their wishes. As you begin to think through your options and wishes, here are some additional considerations you may wish to address in your planning:
- What if Both Parents Pass Away: Who will make decisions about preserved sperm, eggs, or embryos? Will they be destroyed, donated, or used by another family member?
- What if One Parent Passes Away: Can the surviving partner use the banked reproductive materials to build a family, either alone or potentially with a new partner? This may depend on your state laws and prior agreements with either your deceased partner or the medical facility holding the materials.
- Change of Heart: What happens if you initially planned to use assisted reproductive technology to have a child or children, but later change your mind? The good thing to know is that your estate plan can be updated to reflect your evolving wishes.
Remember, There's No One-Size-Fits-All Answer
The best plan for you will depend on your unique circumstances and your family's values. Open communication and a well-crafted estate plan will ensure your wishes are respected, even after you're gone. If you have additional questions or you would like to start the process of memorializing your wishes for your embryos and/or genetic material, we are here to offer guidance and support. Simply contact us at 619-281-1888 and we’ll help you create a plan that reflects your hopes and values for your growing family.