You Have Frozen Embryos. Does Your Estate Plan Say What Happens to Them?

You Have Frozen Embryos. Does Your Estate Plan Say What Happens to Them?

For many families, frozen embryos represent possibility. They might be part of a plan for another child, remain in storage after a family is complete, or be a decision you put off while getting on with life. Wherever you are in that process, there is a question worth answering: What should happen to your embryos if you die or can no longer make decisions? For North Carolina families, thoughtful planning needs to address both the outcome you want and the person who can carry it out. A plan for one person’s death may need a different instruction if neither partner survives or if you are alive but unable to make decisions.

What happens to frozen embryos if you die? There isn't one answer that applies to every family. Start with the consent forms, storage agreement, and any separate embryo-disposition agreement you signed. “Disposition” means what happens to the embryos, including whether they are kept in storage, used for reproduction, donated, or thawed and then discarded. If your documents leave gaps or conflict, your family and the clinic can face uncertainty about whose instructions to follow. That uncertainty is exactly what thoughtful planning should address while you can explain your intentions and sign the necessary documents. Although your forms can address these questions, they aren’t sufficient to be an estate plan. For more information on this, see our companion article, “Your Fertility Clinic Forms Are Not Your Estate Plan.”

The question every fertility patient should answer If I cannot make this decision myself, what do I want to happen to my embryos, and who should carry out that instruction? These are two parts of the same planning question. Choosing someone you trust doesn't tell that person what you want. Documenting a preference doesn't establish someone’s authority to act. For example, you might want your partner to have the option to use the embryos after your death but want a different outcome if neither of you survives. Or you might want storage to continue during a temporary incapacity without authorizing anyone to donate or discard the embryos. Those choices need different instructions. Be specific about whether reproductive use after death is permitted, who is permitted to use the embryos, and what should happen if that person declines or cannot proceed. ASRM's posthumous-reproduction guidance emphasizes written authorization and recognizes that a clinic is not obligated to provide posthumous reproductive services simply because a request is made. You don't have to make the same choice as anyone else. You do need a plan that explains your choice clearly enough for someone else to understand and implement it.

What if you and your spouse or partner die together? A plan that says “my partner will decide” leaves an unanswered question if your partner cannot be there. Review what your agreements say if both of you die, including in the same accident or close together in time. Decide whether you want a specified outcome or a designated person to choose among permitted options. Then discuss how that person would receive legally effective authority. Naming someone in a will should not be treated as a guarantee that the clinic will recognize that person as having control over the embryos. Build in a fallback. If you want to donate the embryos to a particular person, what happens if they decline? If your preference is donation through a program or for research, what happens if that option is unavailable? If storage should continue for a period, who will arrange payment during that period, and what happens when that period ends? These questions turn a preference into a workable plan. Focus on each role in your documents and what those roles do. The person you choose to raise your existing children does not receive embryo decision-making authority merely because you named them as a guardian. Your planning should address each responsibility separately.

Who can make decisions if you become incapacitated? A will addresses matters after death; it does not appoint someone to manage your affairs while you are alive. Incapacity planning calls for documents that operate during your lifetime; those documents should be coordinated with your embryo agreements. In North Carolina, a financial power of attorney can, depending on its terms, authorize an agent to handle financial and contractual matters, such as paying storage charges. The agent must stay within the authority granted and follow your known reasonable expectations. A health care power of attorney serves a different function: it authorizes decisions about your health care. North Carolina law does not give a health care agent general authority over your property or financial affairs. Naming someone to make medical decisions for you should therefore not be treated as blanket permission to control stored embryos or authorize reproductive use by another person. Your attorney should distinguish routine storage management from decisions to use, donate, or discard embryos, and review the authority needed for each. A general power of attorney form does not resolve every question about stored genetic material. Choose a backup agent as well. North Carolina permits successor agents to serve when the first person cannot or will not act. If your partner is your only named agent and both of you become incapacitated, your plan has a gap. Finally, a durable financial power of attorney ends at your death. “Durable” means it survives incapacity, not that your agent keeps acting indefinitely. Your plan needs to address the transition from lifetime authority to the arrangements that apply after death.

Can you leave frozen embryos to someone in your will? Do not rely on a simple sentence in your will as a complete embryo-transfer plan. North Carolina's will statute allows you to dispose of property and interests you are entitled to at death. That general rule does not establish that embryos can be transferred to a named beneficiary in every circumstance or that the beneficiary can use them for reproduction. A will can record your intentions and address related estate matters, but your attorney needs to evaluate what rights you actually hold, whether they can be transferred, and how your instructions interact with existing agreements. If another person shares decision-making rights, your will cannot be assumed to eliminate those rights. Suppose you want your sister to receive your embryos if both you and your partner die. The planning conversation needs to go beyond “leave them to my sister.” Does she want to receive them? Do the existing agreements permit the proposed arrangement? What documentation would the clinic require? Who would pay storage and transfer expenses, and what is the alternative if she declines? Giving someone authority to arrange a permitted disposition is also different from giving them permission to use the embryos to have a child. Your documents should make that distinction clear rather than leaving the recipient, executor, or clinic to interpret an ambiguous gift.

Make the plan workable Deciding what you want is the starting point. The people carrying out your instructions also need to know that the embryos exist, where they are stored, and where to find the documents and contact information they will need. Discuss who would handle storage expenses while an authorized decision is being carried out, and make sure your chosen person understands the role. Even thoughtful instructions are difficult to carry out if no one knows where to begin. For the practical steps involved in reviewing clinic paperwork and coordinating updates, see our companion article, “Your Fertility Clinic Forms Are Not Your Estate Plan.”