Estate Planning For Embryos Under New York State Expanded Bill of Rights
If you are a New York State resident and who has obtained medical care to expand your family via assisted reproductive technology, you should be aware of the revision of New York State’s Equal Rights Amendment. The Amendment expands civil rights for purposes of reproductive healthcare, but leaves ambiguity as to whether stored genetic material is covered under the law.
The recent National election results may also create uncertainty on your individual bodily autonomy and privacy in managing your reproductive healthcare. Without getting into Constitutional law, this article provides insight on how to plan for your genetic material following the new State Civil Rights law and existing statue in New York State. If you need assistance on estate planning for your genetic material, please contact an experienced attorney at Abelaj Law, P.C. at 212-328-9568.
New York State Expands Civil Rights to Include Reproductive Healthcare, but Does Not Address Stored Embryos, Oocytes
On November 5, 2024, New York State voters approved the Equal Rights Act, which expands the definition of individual civil rights within the state to include, in part, “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” Individuals cannot be discriminated against based on these, and other, characteristics. It’s important to note that the language does not provide clear guidance on how it applies to resulting genetic material.
Although the text appears to be clear, the interpretation of what is considered “reproductive healthcare and autonomy” will be determined by the Courts as cases arise to clarify scope and meaning. In order to appreciate the uncertainty, it might be useful to describe ART and the resulting genetic material.
Genetic Material Resulting from Assisted Reproductive Technology
According to the Department of Health and Human Services, in 2021, approximately 2.3% of all infants born in the United States were conceived through the use of ART, which includes in-vitro fertilization (IVF) or intra-uterine insemination (IUI). According to DHS, “the reasons that cause an individual to obtain medical assistance for conception are numerous, including age, health conditions, and for couples who are same sex or individuals without a partner and cannot otherwise conceive. In addition, some couples experience unexplained infertility where tests reveal no obvious causes of infertility.” Among the states with the highest rates of ART are New York and New Jersey.
ART requires a patient to be under the care of a reproductive endocrinologist or medical facility. ART allows a patient to plan and preserve the opportunity to have a child at a later time. The process frequently includes specialist consultations, costly prescription medications, and medical procedures, which are not always covered by insurance, for the important goal of obtaining eggs, sperm or reproductive tissue for purposes of conceiving. A patient may require more than one round (or attempt) of ART before they are able to conceive. One round of ART may result in genetic material that is not initially used but is instead preserved for later use.
The Food and Drug Administration regulates human reproductive tissue and governs disposition of donated genetic material. It does not, however, govern the disposition of genetic material created by the intended parent or genetic material purchased by a potential parent.
Rights to Genetic Material After Death Based on Contract Law
Since 2014, New York State law provides a framework on the disposition of genetic material resulting from IVF and the rights of a child born after the death of an intended parent by the use of ART. Section 4-1.3(j) of the Estates, Powers and Trusts Law provides that disposition of genetic material is “subject exclusively to the provisions of this section and to any valid and binding contractual agreement between such person and the facility providing storage of the genetic material and may not be the subject of a disposition in an instrument created by the person providing such material or any other person.”
To simplify, New York State’s position is that disposition of genetic material is a private matter that is governed by a contract between the “owner” of the genetic material and the facility storing the genetic material. For this reason, it is critical that if you execute the appropriate documents with your storage facility on how to dispose of your genetic material following your death.
Take Charge by Reviewing Your Written Contract and Alerting Your Estate Fiduciaries
Ensuring that your genetic material is disposed of according to your wishes requires that you review the written agreement you signed with the storage facility. If you are unsure of what you initially requested or would like to make a change, contact the storage facility directly.
If you are looking to dispose of your genetic material prior to your death, you must contact the storage facility. Be prepared for a potentially lengthy delay between your request to dispose of, or destroy, your genetic material and the time when it is actually completed. The process usually requires multiple reviews by various doctors and clinicians at the storage facility which may result in a six-month wait before your request is finalized. In order to ensure that your written agreement is honored at your death, consider including a provision in your will that refers to your remaining genetic material. Ensuring that your wishes are honored requires that your fiduciary be aware that you have provided written instructions.
Contact Us for Assistance
At Abelaj Law, PC, we are committed to assisting individuals and families with all of their estate planning legal needs so they can focus on their family and health priorities. Contact our experienced legal team today at 212-328-9568 for a free introductory call to learn more.