A happily married couple undergoes fertility treatment to build the family they have always dreamed of.  After giving birth to healthy twins, they continue their busy lives, without giving much thought to the three cryopreserved embryos which they agreed to freeze at the clinic many years ago.  Fast forward ten years, when the divorce papers are served, or the cancer treatment limits the ability to produce more children, or the untimely death of both husband and wife leaves the remaining family members squabbling in probate court over the precious embryos produced many years ago.

The Current Model:  Court Decisions and the Need for Estate Planning

The IVF clinics often do everything they can to anticipate future circumstances and help their patients address them in writing, but their forms must blanketly address all patients’ wishes regarding maintenance and disposition of their genetic material.  It’s impractical to assume that each physician has time to discuss, in detail, each patient’s family dynamic, the vast array of future contingencies which may affect their choices regarding their genetic material, or follow up with regularity to make sure the forms reflect the possible changes in life circumstances or wishes of each patient.  Even if they were able to accomplish all of this, if courts are asked to interpret these forms, court rulings in this area vary widely among the states, and sometimes among courts within each state.  There is no federal guidance regarding the disposition of preserved genetic material, and courts apply the facts as they exist at the time of the dispute, not necessarily when the embryos or gametes were cryopreserved, and make a ruling. This uncertainty is disheartening to everyone in the fertility community.

Planning the Future for Your Frozen Genetic Material:  The Fertility Preservation Trust  


Embryos and gametes are special, and they deserve special treatment in your estate plan.  The Fertility Preservation Trust is specifically tailored to address the needs and wishes of patients with frozen genetic material.  And, since you retain full control over your trust during your life, the trust provides flexibility.  As life changes, you can freely amend the trust to reflect new choices. What about disputes?  Courts recognize trusts and are accustomed to interpreting them.  Every state has enacted trust law, and the laws among the states remain fairly uniform.  While court rulings are never guaranteed, the established law in every state and familiarity of courts adds a layer of security in an insecure legal environment.

How can incorporating the Fertility Preservation Trust in your estate plan be beneficial at death?  Unlike the clinic form, trusts can survive your death, and your wishes listed in the trust can be carried out for generations, if you choose.  Another valuable benefit, unique to the trust, is that you are able to fund the trust at death to pay storage fees, which relieves family members of this burden after death. Also, the use of a trust reduces court involvement at death.  Trust assets are not probate assets, which means the terms of the trust, rather than the probate court, control the maintenance and disposition of your genetic material after death.

Many people are interested in preserving their genetic material for as long as possible.  The Fertility Preservation Trust can be used to preserve and manage frozen embryos, gametes, cord blood, and reproductive tissue for up to 360 years after death, or longer in certain jurisdictions.   Proper planning provides peace of mind today and for generations in the future.

For more information about the Fertility Preservation Trust and how it provides better protection and benefits those with cryopreserved genetic material, visit www.trustfertility.com or email Ashley W. PIttman, J.D., LL.M at apittman@trustfertility.com.