IVF planning is anything but easy. There’s the endless research and emotional rollercoasters, along with crunching the numbers and digging into insurance. Medical appointments will start to fill up your calendar, and a lot of your free time will be spent managing your lifestyle (Get more sleep! Eat healthier! Exercise, but not too much! MANAGE YOUR STRESS!).
It’s already a lot to think about, and while I don’t want to add one more thing to your plate, most people who are thinking about IVF treatment don’t realize they also need to think about the legal aspects. Who owns embryos? What happens if you and your partner get divorced or experience a medical emergency?
If you didn’t know you needed to be asking these questions, it’s not your fault. IVF estate planning information isn’t exactly plastered on the walls at your reproductive endocrinologist’s office. You don’t have to solve for every eventuality, either. You just want to outline what matters to you so that if you need it, you have a plan instead of an assumption.
Worst Case Scenario: What Happens in Divorce, Death, or Incapacity?
Super cheerful questions to ask when you’re trying to build a family, right? But asking now is important. Courts tend to view embryos as special property rather than persons, which can create grey areas.
Let’s say you separate after IVF, and one of you wants to move ahead with conception, while the other doesn’t. Who gets to decide? And what does that mean for child support? If you pass before you’re able to start your family, do you want your partner to be able to donate your embryos to another couple? Or, let’s say your partner becomes medically incapacitated. Who has the right to make decisions for them regarding your shared embryos?
Hawai’i recently passed Act 298, which updated Assisted Reproductive Technology (ART) legislation, clarifying a lot of these grey areas. It prioritizes rights for intended parents regardless of marital status or gender identity, and reduces the risk for an individual to become a legal parent without their consent. It lays some helpful groundwork, but it isn’t enough to replace an intentional estate plan that anticipates these scenarios in detail.
But Doesn’t the Clinic Paperwork Cover Embryo Ownership and Disposition?
One of the first things you’ll do during your IVF journey is sign a consent agreement to indicate what you want to happen to your embryos in case of divorce or death: if they’ll be stored for future use, donated to another couple or to research, destroyed, and what happens if one of you changes your mind.
Clinic forms may appear to cover the bases, but courts may view them as evidence of intent, rather than as a final contract. They’re generally not updated to reflect changing legislation and lack the depth required to address essential planning needs such as legal standing, parental rights, and inheritance. This is especially important for same-sex couples and LGBTQ+ families to think about. Without a thorough plan, clinic policies or state laws could prioritize choices made by biological relatives over a surviving partner’s wishes.
Completing your own embryo ownership and disposition agreement is a non-negotiable, even if you feel like you’re rehashing everything the clinic already covered. It can be beneficial to make sure each partner has independent legal representation so that neither party can claim duress. If all of this is news to you and you’re well into your IVF journey, don’t worry; you can still create legally binding disposition agreements after you’ve created and stored embryos wth your partner.
What About Your Estate Plan?
Let’s muddy the waters a bit. Say you have two kids from a prior relationship, and you and your spouse decide to grow your family through IVF. You pass before the two of you can conceive, and your spouse wants to move forward with implantation. Does that child, whether or not they have your DNA, get an inheritance from you, or do the two children you had while you were living get it all?
IVF sheds light on just how important it is to have an updated, cohesive estate plan. The second you choose to pursue IVF, your estate plan needs to reflect the ripple effects of that choice, including your beneficiaries, durable POA, healthcare proxy, and posthumous conception rights.
That’s where a Reproductive Estate Plan (REP) comes in. Don’t think it’s just for couples, either. If you’re single and freezing your eggs for later, or if you’re planning to solo-parent, it’s crucial to consider what you want to happen if you’re not able to make decisions.
Build Clarity In the Waiting
IVF requires intentionality, which can be tricky when it brings up complicated questions like ownership of genetic material or the intersection of medical decisions and legal precedent. It’s okay if you feel overwhelmed. It’s a lot to think through!
Often, I find that talking to the right people takes the overwhelm out of big decisions, and finding a good family lawyer is a helpful first step. If you’re in Hawai’i, that could be someone like Katherine M.M. Lukela with Lukela & Kobayashi, LLP, or Carol Lockwood with Schlack Ito, LLLC. It goes without saying that your family lawyer should be in contact with your estate planning attorney and your financial planner; if it’s going to work for you, it all needs to work together!
Another good place to start is with my checklist for updating your estate planning and financial strategies: What Issues Should I Consider at the Start of the Year? IVF may be a medical journey, but building a family is a legal and financial one too. Let’s make sure you’re not leaving anything to the last minute.
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