Whether it is storing cord blood after giving birth or freezing embryos in anticipation of pregnancy, more and more young women are banking their genetic material. There are all kinds of reasons for a comprehensive estate plan that go beyond effective tax planning and providing for loved ones after death: ensuring the safety of your banked genetic material is one of them.

Cord Blood

In Canada, women who give birth have the option of storing their cord blood stem cells, which can later be used to treat certain genetic diseases and blood disorders. In fact, the practice has become so common that July is “Cord Blood Awareness Month.” There are three types of cord blood banks in Canada: public banks, which store blood for transplants into patients who are not the donor; private for-profit banks, which store blood for the donor’s child(ren) or family; and biobanks, which store stem cells for research and potential drug manufacturing. The blood in private registries belongs to the donor, though certain registries will allow the donor to list an additional owner. However, there is no uniform policy that applies to all banks. You should ensure that your estate plan makes provisions for your cord blood, including arrangements for storage payments after your death and granting access to a second owner or an estate trustee so he or she can access the material should the need arise.

Embryos, Ova, and Sperm

As we wait longer to have children, and since IVF has become more accessible, it has become increasingly popular to store embryos, ova, and sperm. While a recent family law case treated an embryo (fertilized egg) as “property” to be dealt with in accordance with the principles of contract law,[1] sperm and eggs receive different treatment under the Assisted Human Reproduction Act, which requires the donor’s express written approval before the material can be used in creating an embryo.

For this reason, it is critical to consider how a will, or the absence of a will, will impact where your genetic material ultimately ends up. This is particularly important for common law couples. For example, if common law partners store embryos for later use, but one partner dies unexpectedly without a will, it is possible that the surviving common law partner could be left without any rights to the embryo at all.

Planning

Even with a valid will and without a dispute, a surviving spouse or partner may not have the information, or the legal right, to access banked genetic material in the event of the owner’s death. The law on genetic material is nuanced, and it can be complicated. Taking appropriate steps now can prevent confusion, heartache, and litigation down the road.

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Authors: Sheila Morris, Minden Gross LLP

Sheila Morris is a wills and estates litigator at Minden Gross LLP. Prior to joining Minden Gross, Sheila gained a breadth of civil experience, from insurance litigation to commercial litigation, at two boutique firms in Toronto. Sheila is a member of the OBA’s Elder Law Executive, and regularly writes and speaks on estates and elder law issues. Sheila is a proud young woman in the law, with a mandate to refer to women, mentor women, and advocate for women’s issues.