Article on Inheritance of Frozen Reproductive Material

Elise N. McQuain (Associate Attorney, Goodwin & Goodwin, LLP, Charleston, West Virginia) recently published an article entitled, Inheritance of Frozen Reproductive Material, 40 Ohio N.U.L. Rev. 301. Provided below is an excerpt from the introduction of the article:

No obvious similarities exist between a soldier leaving for war, a woman seeking a graduate degree, a same sex couple, and a man diagnosed with cancer. Closer examination, however, reveals that these people may all have reasons to take advantage of cryopreservation. Cryopreservation can make conception a technological possibility when it is no longer possible naturally. ¹ Many people cherish the idea of having children; however, a considerable number face situations that jeopardize that idea. ²

Cryopreservation is the freezing of reproductive material and is used concurrently with artificial insemination to produce children. ³ Questions regarding disposition of the frozen reproductive cells arise when a depositor of reproductive material dies and leaves behind the frozen cells. ⁴ Courts have struggled to address this challenge, which technological advances have created. ⁵ Traditional estate solutions relating to property and money seem inadequate when addressing cells with the potential for human life.

This article argues that depositors have the fundamental right to control whether they procreate after death. The best method of protecting that right is to ensure that fertility clinics, sperm banks, loved ones, executors, and courts know and honor a depositor’s wishes concerning the disposition of his or her reproductive material after death. ⁶ The best way to effectuate that protection is to require all depositors to execute a “death clause document” at the fertility clinic or storage bank used for storage. ⁷ A “death clause document” is an instrument that clearly states the wishes of the depositor in case the depositor dies while his or her reproductive material is still in storage.8 This article lays out the appropriate format and execution procedure for the death clause document in order to ensure that it will be recognized as a will substitute. Using a uniform document that addresses all of the concerns and contingencies of depositor death permits the fertility clinic or storage bank to easily ascertain and follow the individual’s wishes regarding disposition of his or her reproductive cells.