For years we have been imploring our clients to have a Reproductive Estate Plan in place, warning them of the consequences of not having such a contract in place. This case out of Illinois highlights why anyone pursuing IVF should have a Reproductive Estate Plan in place before any gametes are collected or embryos created:
An estranged Illinois couple are battling in court over the future of frozen embryos they created before they broke up.
Dr. Karla Dunston wants a biological child, the Chicago Tribune reported Wednesday. Her ex-boyfriend, Jacob Szafranski, a nurse, said forcing him into parenthood without consent would violate his rights, even though Dunston has said she does not expect financial help or any other assistance.
The couple created the eggs in 2010 after Dunston was diagnosed with non-Hodgkins lymphoma. She was 39 at the time — near the end of her fertile years — and knew chemotherapy would probably end any chance she had of conceiving a child. Szafranski agreed to participate at the time. Two months later, they broke up.
A lower court ruled in favor of Dunston, but an appeals court sent the case back for reconsideration. Legal experts say the problem is deciding what exactly the couple agreed to when they created the embryos. The couple signed a consent form at the time that would bar any use of the embryos without mutual agreement. But Szafranski also wrote Dunston at the time saying he “wanted to help her have a baby.”
A lawyer drew up a third document that would have given Dunston control of the embryos. The couple never signed it.
My law partner, Dean Masserman, has been crafting Reproductive Estate Plans for our clients for years — to avoid this very type of scenario. Not surprisingly, many inertility patients are resistant to such a document because they are entering into their treatment with only the best of intentions. Divorce, death, incapacity is not even on the radar. In explaining the need for a Reproductive Estate Plan (“REP”), Dean explains:
You have spent years addressing your infertility problems; spent thousands of dollars finding a solution so you can start and grow you family. Your children, both born and unborn are your most precious asset, and yet you have taken no action to protect those assets. Nobody has offered you a prophylactic device designed specifically to address legal problems unique to infertility clients, before they arise. We have crafted a solution perfectly suited for their infertility clients. Imagine a will, living trust, durable power of attorney, advanced healthcare directive, and pre-nuptial agreement morphed into one comprehensive legal document. Now just such a document exists, a Reproductive Estate Plan (REP).
VM drafted and created the first of it’s kind, REP, designed to offer clients the same type of asset protection they use for their financial estate, but for their Reproductive Estate. We have been strongly encouraging all of our infertility clients to execute a Reproductive Estate Plan which we believe will ultimately become an industry standard as more cases like the one discussed in this article become, sadly, more commonplace. The Reproductive Estate Plan should be drafted and executed before the commencement of medical procedures by the Reproductive Endocrinologist, in order to protect the rights and interests of clients and their unborn children in the event of Legal Separation, Divorce, Legal Incapacity or Death. Among other things, the REP will:
(1) Resolve intestate parentage/inheritance issues that would result if Intended Parents and/or Recipients decease after contracts have been executed, but before his/her parental rights have been finalized;
(2) Enable Intended Parents to designate legal guardians to make legal and medical decisions, and take custody of their existing and unborn child(ren), in the event it is determined by a court of competent jurisdiction that he/she lacks the legal capacity to make said decisions, or in the event of his/her death;
(3) designate a third party as an “attorney-in-fact” (durable power of attorney) to act in stead of the Intended Parents if they are deceased or unavailable, to execute all legal documents necessary to terminate the parental rights of the surrogate, the donors, and if married, their husbands, in order finalize the parental rights of the child(ren) pre-birth, post-birth or by adoption, so that the designated legal guardians may properly take custody of the child(ren) and return to the Intended Parent’s and/or Recipient’s home state or country;
(4) Enabling Intended Parents to designate executors and Conservators in the event of death, legal incapacity, divorce, dissolution and legal separation;
(5) Expressly manifest the Intended Parent’s intent and wishes regarding, the use and/or implantation of his/her/their genetic property, and/or cryo-preserved sperm, eggs or embryos, and the creation of a child(ren) after their death;
(6) Assist clients to communicate their wishes regarding the future use and/or final disposition of their genetic property, and cryo-preserved sperm, eggs or embryos in the event of death, legal incapacity, divorce, dissolution and legal separation; and
(7) Declare their future treatment options and desires via advance healthcare directives, for both the Intended Parents, as well as their existing and unborn child(ren), in the event the intended parents are legally incapacitated and unable to make said decisions on their own behalf.
Again, if you are considering IVF or already have frozen embryos, please speak to a qualified reproductive law attorney about the benefits of having a Reproductive Estate Plan prepared.