IVF and Estate Planning: What Massachusetts Parents Need to Know to Protect Their Future Family

With the growing use of assisted reproductive technologies like IVF, estate planning has expanded to cover a new frontier: frozen embryos, eggs, and sperm. These biological materials can hold both emotional and reproductive significance, and without clear legal directives, courts are often left to interpret the intent of the individuals involved. For Massachusetts residents, it’s crucial to address these issues thoughtfully in both contracts with fertility clinics and formal estate planning documents. Here’s what you need to consider:

1. Contracts with Fertility Clinics: Addressing Death and Divorce

When individuals or couples begin IVF treatment, fertility clinics typically require contracts that address various contingencies. These agreements should clearly specify:

• What happens in the event of divorce: Who retains control over embryos, sperm, or eggs? Will both parties need to agree on their disposition, or does one party retain rights?
• What happens upon the death of one or both parties: Does the surviving partner have sole authority, or is another individual named as a successor decision-maker?

Most clinics allow clients to indicate their preferences and revisit these decisions over time. However, if no clear plan is in place or if the designated individual has also died, the legal outcome can become uncertain.

2. Choices for Stored Embryos, Eggs, or Sperm: Beyond Reproduction

Estate planning should not only focus on who controls the genetic material, but also on what is to be done with it:

• Destruction: Choosing to have the embryos or gametes destroyed if no longer needed or if both parties have died.
• Donation to another individual or couple: Permitting the material to be used by someone else to achieve pregnancy.
• Donation for research: Allowing embryos or gametes to contribute to scientific study.

These decisions are typically made jointly by both parties at the outset. If one party dies, control usually passes to the survivor. But upon the death of both individuals, your estate planning documents must clearly articulate what should happen. Massachusetts clinics often require that a will or trust explicitly address the "care and custody" of stored genetic material.

3. Reproduction After Death: Estate Plans as Guidance, Not Permission

What if someone wants their stored embryos, eggs, or sperm to be used after they die to conceive a child? This is where estate planning guidance meets legal limitations.

In Massachusetts, the courts must still get involved even if your estate plan includes your wishes to allow posthumous reproduction. Probate courts require a judge’s permission before anyone can use stored embryos or gametes for reproduction after a donor's death. Your estate plan may provide persuasive guidance, but it is not controlling. 

Key Recommendations for Estate Planning in Massachusetts

1. Coordinate with your fertility clinic: Make sure your storage and consent agreements include plans for death, divorce, and disposition.
2. Use clear and precise language in your estate plan: Explicitly address custody and control, as well as disposition or intended use.
3. Name a decision-maker: Choose a trusted individual who will have legal authority to carry out your wishes regarding stored embryos or gametes.
4. Revisit your documents regularly: As your family circumstances and intentions evolve, update both clinic consents and estate documents.
5. Consult an experienced estate planning attorney: This area involves overlapping legal, ethical, and emotional considerations. Proper guidance is essential.

As science advances, so must our legal tools. If you're undergoing fertility treatment in Massachusetts or have frozen embryos or gametes in storage, don’t wait to include them in your estate plan. Clear, written intent can spare your loved ones uncertainty—and ensure your legacy continues in the way you choose.

If you have any questions or  would like assistance creating a plan for the future, reach out to attorney Amanda Mulhall of Mulhall Withrow PLLC at (781)-381-5287, or through email at amulhall@MulhallWithrow.com to explore your options.