Technological progress is sometimes explained in terms of exponential growth. Over the course of the past several decades, innovation and invention—from space flight to the advent of the internet—have changed the way we live, think, and interact with one another. 
While lawmakers continue to ponder how this progress should impact the Golden State’s probate code, some emerging systems pose novel questions that our legal system is not yet equipped to answer. Assisted reproductive technologies, for instance, allow for the preservation of both eggs and embryos. Under most circumstances, a child born from a preserved egg or embryo is still entitled to an inheritance.
However, if the donor passes away before the child is born, her newborn could be thrust into a precarious and near-unprecedented position.
The Advent and Expansion of Assisted Reproductive Technology
Assisted reproductive technology (ART) was introduced in the United States in 1981. It serves a wide range of purposes. However, ART is most often used to help couples conceive when achieving pregnancy might otherwise be impossible.
In more recent years, assisted reproductive technology has been increasingly used to help women preserve their eggs until they feel ready to become pregnant—especially women who may be career-focused and want to wait to have children. Some companies, especially in Silicon Valley, have even advertised ART-type services as hiring incentives.
Assisted Reproductive Technology and Estate Planning
While assisted reproductive technology can be used helpful for timing pregnancy, it can have critical implications in estate planning. If, for example, the donor dies before her child, complications are almost inevitable.
ART: What to Consider When Creating Your Estate Plan
- If a woman predeceases her child, and she has no living spouse or trusted relatives, who will serve as the child’s guardian?
- If a woman freezes her eggs but dies before she has children, who is afforded the capacity to determine the eggs’ future use?
- If a woman freezes a fertilized egg—an embryo—but later separates from a husband or domestic partner, how would issues of child custody, visitation rights, and inheritance be decided?
In California, any person who dies without a will is said to have died intestate. During an intestate succession, a probate court will refer to statutes and legal precedents when determining the rights of potential beneficiaries, including the rights of an heir conceived through assisted reproductive technology.
So, while ART can be used to bring new life into the world when pregnancy might otherwise be impossible, the use of this technology necessitates the creation and execution of a carefully considered estate plan—an estate plan that protects the rights of the donor, and an estate plan which protects the right of the child should the unthinkable ever happen.
