You should update your will before going through the in vitro fertilization process or considering a surrogacy journey. Even if you currently have a will, it may not be inclusive of a child born from surrogacy, or it may not be sufficient to dictate what happens to your stored embryos when you pass away.
It is not uncommon for wills to exclusively name already living children, or to limit heirs to children born to yourself or your spouse through a personal pregnancy. If you have a child via gestational surrogacy, that child may have to argue for their share based on the language of your will. While they are your child in every way, laws can be unclear. By specifically including children born by surrogacy or adopted, you can make the probate process easier for your surviving children.
As for your IVF embryos? The law is unclear regarding what happens to them when you and your spouse pass away. Usually, the contract with the facility storing your embryos will allow them to unfreeze the embryos so they are no longer viable. If this is against your beliefs or simply something you are not comfortable with, you can dictate what you want to happen to your embryos. There are a few options. Donation to scientific research can be an option, although you should know that the embryos will likely be destroyed in some circumstances, and this option might be limited by the law of your space. You and your spouse can agree that the surviving spouse may use them to have a child, despite your death. You can also agree to donate them to an infertile couple who will use them.
Assisted reproductive technologies are new. The law is not up to date on all possibilities. By updating your estate plan, you can plan for situations the law hasn’t yet. Bringing a child into the world or creating embryos is a serious undertaking. The contracts and estate plans involved are crucial to fill in the gaps that the law hasn’t covered.
If you are considering pursuing IVF or surrogacy, contact Gehling Osborn Law Firm to help plan for the unexpected.