Woman researching on computer about egg freezing and estate planning.

7 minute read

How Fertility Planning Can Affect Your Estate Plan

What happens to your frozen eggs, embryos, or sperm if something were to happen to you? Trust & Will explains why fertility planning is an estate planning matter.

It’s the month of March, meaning that it’s time to celebrate International Women’s Day. According to the official holiday website, it was created as an occasion to celebrate the “social, economic, cultural and political achievements of women.” This year, the theme surrounds the equity of women relative to their counterparts.

The concept of equity helps us recognize that adjustments must be made to empower different groups of individuals. No matter how many advancements are made, the female sex as a whole still faces difficulties when balancing career and family decisions. Those who would like to start a family, whether today or another day, deal with biological factors that the male sex does not.

Because of this and many other decision-driving factors, egg-freezing is becoming more mainstream. 

In honor of International Women’s Day, Trust & Will explores how women opting to use reproductive technology can further empower themselves with an Estate Plan.

What is Reproductive Technology & Why Is It Popular?

Reproductive technology is an area of medical science that addresses current and future methods of assisting human reproduction. According to the Centers for Disease Control and Prevention (CDC), assisted reproductive technology (ART)  specifically surrounds the handling of eggs and embryos for fertility in women. 

Egg-freezing has been around for quite some time, but it is quickly increasing in popularity. In 2014, heavy hitters such as Apple and Facebook announced that they would pay for the expenses of female workers who wanted to freeze their eggs. While this decision may be controversial, it highlights a tough reality for women who want children. 

Regardless of scientific and technological advancement, one thing hasn’t changed. Biologically speaking, ideal childbearing years come into direct conflict with critical career-building years. While women certainly can juggle childbearing with career if they choose to do so, it is an unfair assumption to generalize that women can, should, or even want to “have it all.” Such claims place unfair pressure on women who often feel forced to make sacrifices in one area or another. These are decisions and sacrifices that men do not have to make.

Thus, egg-freezing and fertility treatments provide some women with the option of delaying having children if they do not feel ready, and so that they may focus on other areas of their life. 

According to the BBC and Time Magazine, there was a sharp uptick in the number of women freezing their eggs during the COVID-19 pandemic. Data suggests that egg retrieval cases increased by 39 percent in the U.S. and as much as 50 percent in the UK. The reasons behind these trends are complex, but suggest that the number of women who choose to delay motherhood continues to increase. Further, the demographics are becoming more diverse. 

Freezing Eggs vs. Embryos: It’s a Legal Matter

While much of reproductive technology discussions use the term “egg-freezing,” there is an important distinction between freezing eggs and embryos. Egg-freezing describes the process of retrieving mature eggs from the ovaries and then flash freezing them with liquid nitrogen, and thus pausing their aging process. These eggs remain unfertilized. 

Some women may choose instead to freeze an embryo, which is the result of the IVF (in vitro fertilization) process. Immediately after retrieval, eggs are fertilized with sperm. Any embryos that develop are then frozen. Both frozen eggs and embryos have similar chances of survival

Why Is this Distinction Important?

While the difference between frozen eggs and embryos may seem purely biological at first, it brings about important social and legal considerations.

First and foremost, having these two options provide women with the power of choice. Embryo freezing requires sperm. This may not be useful for a woman who is single or whose current partner would not necessarily be a co-parent. Further, freezing embryos may create complications down the line. For instance, what if an individual used donor sperm but then has a partner they wish to have biological children with down the line? What if they froze embryos with a partner that they are getting divorced from? Women desiring absolute autonomy over their reproductive decisions will typically opt to freeze their eggs, such that they have more options in the future. 

Egg-Freezing Makes Estate Planning All the More Necessary

Egg and embryo-freezing is providing women with increased options when it comes to reproductive and family planning. Those who freeze their reproductive materials can delay some important decisions to the future, such as whether or not they want children, and whether or not they want a co-parent and who that co-parent should be. Many women choose to delay childbirth for the simple reason that they want more time before committing to such a huge responsibility.

Regardless, the proliferation of egg freezing can lead to tricky legal and estate planning situations. Here are some example scenarios to consider:

  • You have an adult child who froze her eggs but passed away before she could have any children. These eggs are left to her partner at the time, who then has them fertilized and implanted into a gestational surrogate. Is the resulting child your grandchild?

  • You freeze an embryo with your husband but then go through a nasty divorce. He wishes to destroy these embryos, but you want to keep them because you no longer have any viable eggs. What are your legal rights? If you were legally allowed to have a child using one of these embryos, what are the legal entitlements of your ex-husband to this child?

  • You and your same-sex partner make the decision to freeze your eggs with the intention of finding donor sperm later on. You pass away, and your partner inherits your frozen eggs. This same partner later marries a partner of the opposite sex and has these eggs fertilized using her new partner’s sperm and has the eggs implanted into herself. 

Who’s Child is It: A Legal Challenge

In the context of estate planning, descendants and heirs are individuals who are related to you genetically, biologically, and legally. Egg freezing can throw quite a wrench in this, as it can present legal gray areas. It is now possible to have descendants that are neither biologically nor genetically related to you.

As you may imagine, a wide variety of possible scenarios stemming from frozen genetic materials can ensue. A couple of the above examples described children who were conceived posthumously, an area that is not specifically addressed in estate planning law. 

There was a 2012 Supreme Court case that asked the question of whether posthumously conceived children should inherit their parents’ social security benefits. The ruling states that these children can receive these benefits if they would have inherited them under state intestacy laws. (In legal jargon, the Supreme Court essentially punted this important decision to the states.) 

The laws that address inheritance issues vary widely from state to state. For the case above, one state could rule that a posthumously conceived child can only inherit if the parent specified as such in writing. Some states place a cap on how long after a death a posthumously conceived child is eligible to receive any inheritance.

While the justice system will assign a solution to unique scenarios, decisions are being made on a very state-by-state, case-by-case basis. In the absence of an Estate Plan, there is no telling what the outcome will be. In some cases, not having an Estate Plan in place could create an absolute legal disaster. Not only can these decisions impact you individually, they can have considerable ripple effects for your entire family where the question of heirship is concerned.

Therefore, the best way to empower yourself if you or any of your children are considering egg-freezing is to set up an estate plan.

Estate Planning Tips for Frozen Genetic Materials

If you are considering freezing any of your genetic materials (such as your eggs, sperm, or embryos), take ample time thinking about what should happen to these biological assets if you were to pass away. 

Outcomes can vary widely from state to state, or even between courts within the same state, due to the lack of federal guidance regarding frozen genetic material. Courts will utilize facts presented at the time of a dispute or settlement to make their ruling.

This uncertainty surrounding rulings and outcomes means that estate planning is all the more necessary for individuals who choose to freeze their genetic materials. Using an estate plan, you get to make important decisions regarding your personal fertility. For instance, you can decide whether your genetic material should be passed to another individual or destroyed upon your death. You could create your own definition of when a posthumously conceived individual would be considered legally entitled to an inheritance, whether from your estate or estates of other family members (your parents, for example.) Last but not least, you can appoint a Power of Attorney whom you trust to make any unanswered decisions on your behalf. 

With these concepts considered, the decision to freeze your eggs may start to feel just as heavy as making the decision to have a child. The number of possible ripple effects resulting from freezing genetic material can be overwhelming, especially when leaving decisions up to the courts. By creating an Estate Plan, an individual has the opportunity to make as many specific provisions as possible to address and circumvent a number of “what-if” scenarios. This provides the reward of greater flexibility, control, and peace of mind, which is the whole point of freezing eggs in the first place. Don’t miss out on this important opportunity to empower yourself.

The process of estate planning can seem daunting to a newcomer, and especially if you are navigating the already-complex process of freezing your eggs or embryos. Don’t worry! Trust & Will strives to demystify the estate planning process through affordable, accessible technology. We make it easy so that you can focus your energy on making important life decisions. Take our free quiz to see where you should get started, or compare our different estate planning and settlement  options today!

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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.


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