What happens to my stored genetic material when I die?
This common and seemingly simple question can have a very broad-ranging set of answers. While every person’s circumstances will produce individual results, there are a few general considerations to keep in mind when storing genetic material.
First, is your stored genetic material subject to an express agreement?
Whether by contract with a cryogenic freezing clinic or another individual, people often specify in express agreements how genetic material should be disposed of upon death.
Next, what type of genetic material are you storing?
If you are storing your own sperm or eggs, this material will likely be considered your own individual property. Courts have taken the position that frozen genetic material is treated as property. You may dictate how this property should be handled upon your death by creating a Last Will and Testament.
If you are storing sperm, fertilized eggs or embryos, assuming there is no contract that states otherwise, the genetic material will likely take on the character of jointly owned property.
This makes controlling its disposition less straightforward. Courts have taken the position that a person should not be forced to procreate against his or her will. If a surviving donor wishes to use the frozen genetic material after the other donor has died, a court, when asked, may prevent the survivor from using the material. If it is your intent to allow reproduction with your frozen genetic material after your death, you should make this clear with a properly drafted agreement or Will.
Finally, if your genetic material is used after your death, what rights will the person have to your estate when born?
This is an unsettled issue in Pennsylvania, but timing will no doubt play an important factor. If the genetic material has been implanted prior to your death, it is possible that the child born after your death could be considered your heir according to Pennsylvania Intestacy Law. However, if the genetic material has not been implanted or used to conceive a child prior to your death, at least one Pennsylvania court has refused to grant inheritance rights to the child, once born.
If you have frozen eggs, sperm, or embryos, it is important to take the time to consult with an attorney so that you can consider the possibilities regarding the disposition of your genetic material upon your passing and ensure that your wishes are carried out.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.
