Estate Planning for Egg Freezing: Legal Questions Every Woman Needs to Consider Before Freezing

posted by Brigitte Adams June 1, 2016

Eggsurance first interviewed Carole M. Bass, a partner at Moses & Singer LLP in 2012.  Over the past four years, the egg freezing landscape has dramatically changed.  Bass, an expert on cutting-edge estate planning issues involving the use of assisted reproductive technology, explains what every woman should consider and document prior to freezing her eggs or embryos.  

Listen to full interview: 

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Brigitte Adams:  When I froze my eggs in 2011, I did not even think about the legal ramifications if something were to happen to me.  What questions should a woman ask herself prior to freezing her eggs?

Carole Bass:  I think what you experienced is not uncommon.  A lot of women are so focused on the process of freezing their eggs that they do not think of other issues that could arise.  One of the things that you really should be thinking about is what’s going to happen to your eggs should something happen to you – which can be very depressing to think about at a time that is so hopeful.  You need to decide if you want to allow your eggs to be used after your death and, if so, by whom or if they should be destroyed or used for research.

Brigitte:  That sounds like a lot of questions we should be asking…

Carole:  It is.  With a new Assisted Reproductive Technology (ART) like egg freezing there are always a lot of questions and sometimes not so many answers.

Brigitte:  I was single when I froze my eggs and I’m sure that many single women like myself do not have a will or any kind of legal document. What’s the best way to document decisions regarding frozen eggs and is a will required?

Carole:  It’s going to vary a lot depending on where you live. The law in connection with ART is still developing because the technology is relatively new so some states have statutory laws, while some don’t.

For instance in New York, where I practice, we have a relatively new statute that specifically states that you cannot dispose of stored genetic material by will.  Therefore, if you want your eggs to be used after your death, you need to have this in writing – and it must be a separate document from the fertility clinic forms.  If you were to die, an agent would need to be appointed and, within a certain period of time the agent would need to notify the fiduciary of your estate that the eggs are available, as well as file documentation with the court. There are a lot of requirements that people are not thinking about and clinics are not telling women to get done prior to freezing. So, it’s important to look into what the law is in your state and make sure that you are in compliance.

Brigitte:  When I was at my clinic I remember blindly signing page after page after page of documentation. What contractual obligations does a clinic need to meet today and are there some red flags that women should be looking out for as they completing all of this paperwork?

Carole:  You’re not alone on this either! Typically my clients come in after they’ve already gone through the egg freezing process and nobody has read the forms. It’s so common. They don’t know what the forms say and they don’t have copies of them either.

Often people who are banking are thinking that they won’t use them for a long period of time or people are banking because they are about to start cancer treatment and are focused – as they should be – on that.  However, the forms are important contractual documents. There have been a number of cases in which the clinic forms have been enforced and been held to be binding contracts. It’s important to really read the forms and know what they say and also know that you can go back and amend the them should you change your mind.

Brigitte:  What about if a woman decides to fertilize her frozen eggs. Can you explain some factors or decisions that then come into play?

Carole:  When we talk about just egg freezing, as opposed to embryo freezing, you are the only party – it’s your genetic material. Once you are dealing with embryos, there are a lot more issues that can come up.  With embryos, since you have two parties who are contributors, it’s possible that you have two parties with rights to the frozen embryos. If a woman is single and she decides to bank embryos with donor sperm some of these issues will not arise because you have a party who has waived their rights.  

If, however, you bank with a partner or spouse, then you have to think about what’s going to happen in the event that the relationships terminates. It can get very complicated. The clinic documentation has been upheld by some courts.  So, if the clinic form says “if we get divorced the embryos are going to be donated for research” or “the embryos are going to be destroyed” and the couple then gets a divorce and one of the parties decides they want them (the embryos) the clinic forms have been, for the most part, enforced. There have been some exceptions, however, in any case, you should make sure that the forms say what you want them to say and that both parties are in agreement.  The best case scenario is to create a separate agreement where both parties would be represented individually and can negotiate what’s going to happen in the event of death. It’s like a prenup for the embryos.

Another option is to freeze some eggs and some embryos so that if there is a dispute over the embryos, and you can’t reach a resolution or a resolution that you are happy with, at least you will have your frozen eggs which would then be yours alone.  

Brigitte:  Since the experimental label was lifted in 2012, more and more women are freezing their eggs.  Have you also seen an increase in the number of women seeking legal advice about their frozen eggs?

Carole:  I haven’t – it’s really unfortunate. I still think people aren’t looking at this as something that has an impact on their estate or they are young and single, like you said, and just not thinking about estate planning at this point in their lives.  It’s also something that clinics should be mentioning and some of them are and some are not.

It’s surprising because a lot of women who are banking have successful careers, make good salaries, have wealth or have family wealth where there are other estate planning issues going on. I am seeing more and more estate planners bring it up with their clients today, however when I first started dealing with these issues people thought I was nuts – nobody was talking about this at all.

Brigitte:  These are all important points and one more thing  to add to your egg freezing checklist hat in the long run could save a lot of time, money and heartache.

Carole:  Absolutely.  I’ve had people consult me after somebody’s death and it’s so heart-breaking.  It could be the parents or the sibling and they want to use the eggs or embryos and cannot have access to them because there is no documentation indicating the deceased’s wishes.

Brigitte:  One last question, There is legislation regarding embryo freezing, but not egg freezing.  How do you see the lack of ART legislation specific to egg freezing evolving over the next few years?  

Carole: I think there will be more. It just takes time and the law is very slow. There’s a lot out there on sperm donation because it’s been around so much longer. It will evolve whether it just becomes gender neutral with the legislation that is currently in place or with new legislation. And, as more companies start to provide egg freezing as an employee benefit  – like Facebook and some others – in those states where the companies are located there will be a push to get legislation on the books.

Brigitte:  Thank you very much for your time.  It’s critical that women, especially those freezing embryos, think about and document their wishes.  I am in the process of creating embryos with my frozen eggs and will definitely heed your advice!

Carole M. Bass is a partner in Moses & Singer’s Trusts and Estates and Matrimonial and Family Law practice groups. Carole’s expertise includes advising clients on cutting-edge estate planning and estate administration issues involving the use of assisted reproductive technology (ART) and she has written and lectured extensively on this subject.  She can be reached at: cbass@mosessinger.com

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