Thanks to the advancement of technology, couples who are suffering through infertility now have a chance to get pregnant. The most widely known treatment is in vitro fertilization. Through this method, there is a chance for children to be born after one or both parents die. This presents a whole new set of legal ramifications, such as the question of their inheritance rights. Our laws must also change to coincide with technology continuing to advance rapidly.
In Vitro Fertilization
In vitro fertilization is the process in which eggs and sperm are combined outside the human body to form an embryo or embryos. The embryo(s) are then inserted into a uterus. The number of embryos that can be formed through this procedure can vary. In vitro fertilization is an expensive procedure and is not always successful. As a result many couples tend to have more than one embryo to increase the likelihood of having a child. The remaining “backup” embryos that are not placed in the uterus are left frozen at a clinic. Embryos can stay frozen for a decade or more, which means that children can be born years later even after one or both parents dies.
In Astrue v. Capato, the Supreme Court ruled that state laws govern whether children posthumously conceived can receive Social Security benefits. In this case, they were denied the Social Security benefits because Florida laws did not recognize these children whom were not mentioned in the will as the deceased father’s children.
According to New York law, posthumously conceived children after September 2014 are considered beneficiaries under wills or trusts if certain criteria are met. These criteria include:
- The donor of the sperm or eggs must have a signed document that expressly consents to the use of their sperm or egg for posthumous reproduction and authorizes a person to make decisions about the use of the genetic material. Additionally, this document must be within the last seven years of the donor’s life.
- The authorized person must give notice of his or her authority and the existence of the genetic material to the executor of the estate within seven months after the executor is appointed.
- The notice must be recorded with the Surrogate Court within seven months of death.
- The child must be conceived within 24 months or born within 33 months after the genetic parent’s death.
The above New York statute does not apply to embryos. This statute specifically applies to situations in which a man or woman have frozen their sperm or eggs separately for later use. This is common for women who are reaching old age and have not found the right partner or circumstances to have children. As women age their egg count decreases, thus they freeze their eggs. Some men, who are going through cancer treatment that may cause infertility, may want to set aside their sperm before undergoing cancer treatment to have kids in the future. Thus, the inheritance rights of embryos are still unclear and laws will need to play catch up to align with advancing technologies. Currently, there are 20 other states that have laws concerning posthumously conceived children.
To learn more about inheritance laws in regards to posthumously conceived children, contact New York probate attorney Rudolf Karvay.