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From frozen sperm to heir apparent?

An interesting question is arising with the increased use of In Vitro fertilization. If those that donate their genes perish prior to the test-tube conception, can their offspring still be considered heirs and receive benefits?

A Michigan man and his wife are bringing this precise issue to the forefront of the news and possibly Michigan Supreme Court docket with just such a question. The husband became ill in 2001 and in order to preserve the couple's ability to procreate, he quickly froze some of his sperm so that his wife could have more children as desired.

When the husband died later that year, the wife used the sperm to conceive her twins and is now seeking Social Security survivor's benefits for those children. Their older sister currently receives such benefits. The issue remains that the twins were not conceived or born prior to the husband's death and by definition under state law, did not survive him.

It is fairly clear by the husband's actions of leaving his wife power of attorney over the use of the sperm even after death that the husband desired that she have more of his offspring and her use of that sperm would seem to confirm that. It would also follow that he probably hoped that they would be cared for in the same manner as the rest of the family.

What is not clear is how the law will be interpreted and develop with the rise in this type of fertilization and the numerous consequences and estate planning conundrums it brings along with it. This is not a question unique to Michigan, and is likely to arise on a global scale with the rise in infertility and availability of the treatment.

While specificity in desire may not have assisted in this case, it can in other estate planning disputes. The more specific you are about your intentions, the easier it is for a court and the beneficiaries to understand your initial desires.

Source: The South End, "The Current: In vitro fertilization raises questions," Nov. 21, 2012

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