MAKE SURE YOUR ESTATE PLANNING COVERS ART CHILDREN

BY MICHAEL J. HOWELL

Are you familiar with the term “ART Children?” No, it doesn’t mean children who are skilled artists. It means Assisted Reproductive Technology Children.

According to the definition used by the CDC, Assisted Reproductive Technology includes all fertility treatments in which both the egg and sperm are handled. ART procedures involve surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman. They do not include treatments

such as artificial insemination or procedures in situations where a woman only takes medicines to stimulate egg production without having eggs retrieved.

Since it is now possible to store sperm, eggs and embryos for future use, it is possible for children to be born long after the deaths of their biological parents. Some military personnel now engage in such planning so that they will have children, if they die in combat.

For now, estate planning does not cover a number of ART children or certain artificial inseminations as well as it should. Why? There are too many permutations and combinations of events to consider.

However, consider these examples. If a child predeceases their parent, and a grandchild is born some years later, do you want the grandchild to inherit? Does it depend on how many years later? Do you want to hold open your estate indefinitely? What other factors does it depend upon? What happens if the embryo is carried by a non-related third party? What happens if the embryo is carried by your daughter-in-law, but your son is not the sperm donor because he is not capable of having children? What happens if the embryo is carried by your daughter, but it is not her egg? What happens if your child is female, gay and her spouse or partner carries the baby with sperm from a sperm donor? What happens in the future if there is a clone? Similar considerations can apply to your own children. The complexities go on and on.

There are many unanswered questions, but in 2010, according to statistics compiled by the CDC, there were 47,000 ART children born in the United States. Therefore, the complexity of the issue will continue to increase.

For now, you should at least consider whether there may be ART or similar children in your family, already. If so, are they covered by your Will and Trust? Should they be? To be sure, changes may be needed.