Assisted Reproduction – Part 3: Death

This is the last in a three-part series that describes legal issues in assisted reproduction.  In this blog, we’ll explore the parental status of a “deceased spouse.”

If a spouse dies prior to the eggs, sperm or embryos being placed, then the deceased spouse is not a parent of the resulting child unless two conditions are met.  First, the deceased spouse must have given written consent to becoming the parent of a child that might be born by assisted reproduction after his or her death.  Second, a record of the deceased spouse’s written consent must be on file with the licensed physician providing assisted reproduction services.

Why is this distinction important to someone once they’re deceased?  It is important because–if the deceased spouse is the parent–the child born after their death is a “pretermitted child.”  We’ll delve into the nuances of exactly what it means to be a “pretermitted child” in a later blog.  For now, know that it can impact the inheritance of the surviving spouse and children under the deceased spouse’s Will (or the laws of intestacy if there was no Will).  A qualified family law, probate and estate planning attorney can explain options for safeguarding the now-deceased spouse’s plan for distribution of their property during lifetime estate planning.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.