Frozen embryos and posthumously conceived children are among the legal issues estate planning attorneys need to consider in the modern age, according to reproductive technology lawyers in the state.
Lawyers in the field will discuss legal aspect of reproductive technology during a seminar at the Maryland State Bar Association’s Annual Meeting Friday. The presentation, hosted by the MSBA’s Estates and Trusts Section, will give lawyers advice on how to address reproductive technology with their clients.
Assisted-reproduction practices like in vitro fertilization, surrogacy and egg and sperm donation bring with them a new array of legal questions for estate planning attorneys. The issues can be anything from making sure children who are conceived through such techniques share in inheritances to deciding what should be done with frozen embryos in the case of one partner’s death.
“It’s so new for us,” said Danielle M. Cruttenden of the Law Offices of Merrill Cruttenden & Collinson P.A. in Annapolis, who is chairing Friday’s program in Ocean City. “We are just now really starting to discuss this with clients. It’s been around for a while; it’s just now in recent years come to forefront of estate planning.”
Estate planning attorneys need to make sure they ask clients about any children born through assisted reproductive technology. They also need to ask about stored genetic material, like frozen embryos, eggs or sperm, which are considered property, said Cruttenden, who practices mainly in probate and trust administration. If those questions aren’t already on an estate-planning lawyer’s intake documents, it’s time to update them, she said.
When creating an estate plan, attorneys need to update the definition of “descendants” to include children created through reproductive technology, said Nicole Kinsey White of Kinsey Law Group P.C. in Bethesda.
Couples also need to create a contingency plan for frozen genetic material in case one of them dies. If the other partner decides to use the frozen material to have a child after the partner’s death, new legal issues can arise.
A law passed in Maryland last year says any child born through assisted reproductive technology within two years of a partner’s death can be recognized for inheritance purposes.
“Certainly if you are representing clients who have or plan to use the genetic material to have a child after they lost their spouse or loved one, it’s better to make a decision and they need to have child within two years and file consents in order for the child to be protected in order to receive an inheritance,” Cruttenden said.
Attorneys often don’t think of these issues, since reproductive technology is fairly new and legal procedures are still developing to deal with it, attorneys said.
“Some couples are private and sensitive about these issues,” White said. “Estate planning attorneys need to understand how to ask those questions and get that information out of them, and help educate the couple as to why it’s important.”
Explaining the need
Jennifer Fairfax of Jennifer Fairfax LLC in Silver Spring will be talking generally about reproductive technology and what legal issues need to be discussed before and after any procedures.
Whether it’s couples (same-sex or heterosexual) using a surrogate, undergoing in vitro fertilization using their own genetic material or couples using a donor, legal consultation with an attorney will help them down the road, Fairfax said.
The first step is just informing potential clients of the issues, Fairfax said. Many are not aware of the legal questions they should take into account when using reproductive technology and do not even seek legal counsel.
About 30 percent of Fairfax’s cases deal with reproductive technology and the rest are adoption cases, she said. Even so, she said, she’s never contacted by heterosexual married couples who plan to use their own embryos via in vitro fertilization; taking legal precautions in those cases has not yet become common practice.
This makes it important for lawyers to advertise that they handle such cases, because clients don’t think they need legal counsel, Fairfax said.
For example, she said partners should not rely on the documents given out by hospitals or fertility clinics to determine what happens to unused genetic material or embryos. Those are generally informed-consent documents or agreements between the patient and medical provider, not an agreement of the two partners. She said it is better for a couple to draft a contract dealing with what will happen to the embryos in case of death or divorce.
“The time of separation is not the time to resolve ownership of the embryo,” Fairfax said.
In fact, it may be wise for each person to retain separate counsel, Fairfax said.
“My feeling is they should,” Fairfax said. “They are legal rights to what is technically property but the ramifications are so much greater.”
Same-sex couples face additional issues, Fairfax said, which she will discuss at the seminar. Not only do they have to deal with the legal questions a heterosexual couple should address, but they may have to obtain a birth order, which can be tricky if a state does not recognize same-sex marriage.
Those who donate eggs or sperm and those who receive genetic material also need to be conscious of their legal rights, Fairfax said. If someone donates through a fertility clinic, as opposed to a commercial agency, there is no contract between the anonymous donor and the receiving parties.
“I think that can create a legal loophole in the future if a donor asserts their rights or parents attempt to force parental obligations onto the donor,” Fairfax said.
For couples using a surrogate, an agreement outlining the responsibilities and duties of each party can head off issues that could come up later.
“You basically are establishing that the intended parents are legal parents of a child being carried by gestational carrier,” White said.