Although “50 is the new 30” that does not mean that our bodies got the memo when it comes to conceiving and having children, especially for women who have the proverbial “biological clock.” However, thanks to modern medical advancements, it is not uncommon for women to utilize science to prolong their “biological clock” or when they are faced with a health crisis, such as cancer that may damage their eggs. Whatever the reason, an increasing number of women are freezing their eggs so that they can have biological children at a later age. The same is true of men contemplating a vasectomy or undergoing cancer treatments, they may take advantage of a sperm bank to ensure they have the option of future biological children. Likewise, there are many couples battling infertility that have frozen embryos. However, what happens to those frozen eggs, sperm, and/or embryos when you die?
According to California Probate Code Section 249.5, there is a process for determining that a child conceived and born after the death of its parent is to inherit from the Decedent’s estate. In short it requires that:
- The Decedent specify in a dated writing, signed by the Decedent, that his or her gametic material shall be used for the posthumous conception of a child of the Decedent and designate a person to control the use of the gametic material;
- The person who has control of the gametic material needs to send a written notice, via certified mail, of the intent to use the gametic material to the personal representative of the Decedent’s estate or person with the power to control the distribution of either the Decedent’s property or death benefits payable by reason of the Decedent’s death, within four months of the date of issuance of a certificate of the decedent’s death or entry of a judgment determining the fact of the decedent’s death, whichever event occurs first; and
- The child was in utero using the decedent’s gametic material within two years of the date of issuance of a certificate of the decedent’s death or entry of a judgment determining the fact of the decedent’s death, whichever event occurs first.
It is notable, that the legislature felt the need to clarify that: “This subdivision does not apply to a child who shares all of his or her nuclear genes with the person donating the implanted nucleus as a result of the application of somatic nuclear transfer technology commonly known as human cloning.”
While that may clear up what happens to your property if you have children born as a result of frozen sperm, eggs and/or embryos after you die, what happens if you don’t provide written instructions, dated, and signed by you indicating that you want your gametic material used after you die and by whom? This question was presented to me recently by a mother whose son had frozen his sperm prior to undergoing cancer treatments. Unfortunately, her son ultimately succumbed to the cancer. She reached out to me, via an intermediary family friend, when the father of her deceased son wanted to impregnate his new girlfriend with the sperm of his deceased son. She was shocked, horrified, and terrified that her grandchild was going to be born by the new woman in her ex’s life. We discussed the Probate Code and the case law and specifically the 2020 ruling of the Second District, California Court of Appeal in the case of Robertson v. Saadat, B292448 (“Robertson”).
Although the fact pattern in Robertson was much different,Mrs. Robertson was suing a tissue bank for losing the sperm of her deceased husband, the opinion of the court proved to be applicable to my potential client’s case. Ultimately the Robertson court relied on two prior cases involving postmortem disposition of stored sperm: Hecht v. Superior Court (1993) 16 Cal.App.4th 836 (Hecht), and Estate of Kievernagel (2008) 166 Cal.App.4th 1024 (Kievernagel. In both Hecht and Kievernagel, the courts were able to determine the donor’s intent from written documents that specifically addressed the disposition of the sperm upon death. However, in Robertson, the Decedent (“Aaron”) left no instructions regarding his sperm. Based on that fact, the court stated:
“It would be unreasonable to presume that Aaron, and the vast majority of persons who have not left instructions for the disposition of their gametic material upon death, thereby intended to cede their procreational autonomy to their spouses or next of kin. The more reasonable presumption, and the one we adopt here, is that absent some affirmative indication to the contrary, a decedent did not intend his or her gametic material to be used for posthumous conception.”
Although she was not sure if her son had left any instructions, it was almost inconceivable that her son would leave instructions that his father should be allowed to use her son’s sperm to impregnate his girlfriend. So, armed with the Robertson ruling, this grieving mother was relieved to learn that her son’s sperm was not likely to be used in the way his father was hoping.
It made me wonder if individuals who have donated sperm, eggs or have frozen embryos left from in vitro fertilization have considered what could happen to them if they die? If you or someone you know has gametic material saved for future use, encourage them to make sure they have stated their intent regarding the use or non-use of their gametic materials on their death. An ideal place to do this is in your estate plan. As is clear from my case of the grieving mother, there is more at stake than whether that child will inherit from your estate. Left to the wrong person, it could be used to impregnate someone you do not even know, much less consent to birthing and raising your child.
Don’t wait until it’s too late to make your intentions clear. Contact Cannon Legal Firm today for a free consultation to review your existing estate plan; to create a new one; advise you on administering a trust or estate; or if you want to know your rights with regards to a Decedent’s Estate or Trust. Dana@CannonLegalFirm.com – 562.543.4529 (Voice and Text) – www.CannonLegalFirm.com