Intersecting and pushing the boundaries of divorce, property, probate and contract law, the issue of what to do with frozen embryos after death or divorce is becoming a hot legal topic. There are over one million frozen embryos in the United States. With a high divorce rate and the inevitability of dying, what to do with all of these embryos will require legal guidance.
Unlike a typical property dispute, a frozen embryo contains the genetic make-up to create an actual life - a life that will contain the DNA of the decedent. The Maryland Court of Special Appeals describes the frozen embryo as complex, stating “the science and bundle of competing interests wrapped in it- has challenged scientists, theologians, legal scholars and ethicists across many disciplines since ancient times”. The court admits that frozen embryos contain a broader dimension that precludes them from being treated as merely personal property. Yet the court also recognizes that the frozen embryos have not gained the status of legal treatment granted to a newborn baby. Where that “somewhere in between” lies will continue to be hashed out through case law for the next few decades as new and different fact scenarios continue to present themselves.
If the decedent expressly discloses his or her wishes for the frozen embryotic material in an estate plan, then those wishes will be honored. In many cases, no express reference or intention may be made or the person may die intestate (i.e. without a will). The next step will be to look at any contracts signed by the decedent during his or her lifetime that specify the duration of storage of the embryos, terms on how they should be used and provisions upon death of one of the owners. A careful look at the fertility clinic contract may help determine what happens to frozen embryos in the event of the death of a party. If the contract is not clear or if the contract expressly allows the embryos to create life after the death of a party, then the probate court has more research to conduct.
It must then be determined who stands to inherit the embryos. Most likely it will be the spouse. If that is not the case, then court may have a real dilemma to resolve. If it is the spouse, and the spouse wants to accept the bequest, the court still may need to impose limitations. Currently, in Maryland, the probate court will have to look to a family court appeals decision for guidance (Jocelyn P. v. Joshua P., No. 2125, September Term, 2019, Maryland Court of Special Appeals). In this case, the court was attempting to determine how to resolve a custody dispute over the embryos pursuant to divorce. This is obviously distinguishable from a probate matter where one party dies because here both parties could testify as to their wishes and intentions for the embryos. In a probate matter, only the heir can testify as to his or her intentions. If the decedent never revealed any intentions in a prior estate plan or contract those wishes will remain unknown.
The court here focused on the parties’ actual intent rather than the boilerplate language of the fertility clinic contract. The opposing intentions of the parties were of equal significance – one party attempting to preserve the right to create a life while the other party attempting to prevent the procreation using his or her DNA. The appeals court noted that holding someone to terms signed under a boilerplate contract was too arbitrary for an issue as fundamental as what to do with frozen embryos. This opens the door for courts to consider a party’s intentions over previous contract terms. While the 59-page opinion gives a framework for courts to consider, it will be a long time coming before the law clearly states the fate of frozen embryos.
If you have frozen embryos, contact Stouffer Legal in the Greater Baltimore area for estate planning that includes provisions on how they should be managed and/or disposed of upon your death or incapacity.
You can schedule an appointment by calling us at (443) 470-3599, emailing us at office@stoufferlegal.com, or register for an upcoming free webinar using the link below:
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