Here’s a problem that was hardly imaginable a couple of generations ago. Sperm, ova or embryos are preserved for future use. The donor (or one of the donors) dies, but the preserved sperm, ova or embryo is used to conceive a child after the donor’s death. Does that child have rights under the donor’s estate plan?

The right of a child, conceived prior to but born after a parent’s death, is clearly established at law. However, the rights of children conceived after the death of a parent are less clear. Most jurisdictions have consistently denied inheritance rights to a child conceived with genetic material from an anonymous donor. However, where the donor is known, some experts argue that the contingent interest of a child conceived posthumously is equivalent to that of a child conceived prior to a parent’s death.

Enter the importance of a clear estate plan. Assuming the donor has provided written consent to posthumous use of their genetic material (which is a legal requirement in Canada), without instructions regarding a time limit for use, the estate trustee must decide whether to distribute the assets and exclude the potential unborn child, or to suspend distribution until the stored materials have been used or destroyed.

In short, it can get complicated and litigious if the estate plan is unclear. For that reason, it’s important for those who have stored genetic material – or whose beneficiaries have stored genetic material – to clearly address their intentions in terms of how potential biological children (or grandchildren) are to be treated.

One of our recent issues of The Probater https://hullandhull.com/wp-content/uploads/2017/03/March_10_2017_Probater_proof.pdf explores estate concerns relating to fertility in more detail, and provides a checklist that can help cover off fertility issues in the drafting of a will.

For a review of the issues related to the need for written consent to use genetic material posthumously, this article https://www.shebbearelaw.com/can-a-spouse-use-stored-sperm-eggs-or-embryos-after-their-partner-dies/ reviews a recent British Columbia case and provides some excellent tips for those who have stored genetic material for future use.

Thank you for reading … Enjoy the rest of your day!
Suzana Popovic-Montag