"It's definitely something you want a very clear contract about," Strickland says.
The issue of frozen embryos, eggs and sperm gets even murkier when one party wants to destroy them and the other party does not, which forces one party to be a parent against his or her will. It's joint property, but it's questionable whether the laws that apply to property should apply to genetic property.
"If a husband and wife have a house together, and the husband burns the house down, he has deprived the wife of her ability to enjoy her property. She might have a claim against him in court," Strickland says. "There may have to be some sort of legislative recognition that the rights you have over a car or a watch are not the same rights you have over human tissue."
Alton Abramowitz, a matrimonial lawyer with Mayerson Stutman Abramowitz LLP in New York, likened it to the paternity cases that arise when two people have a casual sexual encounter that results in a child. The father is legally responsible for supporting that child, says Abramowitz, who made a name for himself representing Tom Jones in a paternity suit filed against him by a woman with whom he had a casual fling. Jones lost.
"It's a real problem with today's technology," Abramowitz says. "I know some labs now require people to agree in advance as to what happens to the embryos in the event of death or divorce."
Indeed, most reputable clinics will have their patients sign documents detailing how to dispose of the genetic property in the event of a death or divorce.
"What happens is dictated by the contract of the fertility clinic," Rubenstein says. "If the contract says what happens, that's what happens, unless the parties change it. Some states now require in the contract with the fertility clinic that, in the event of a disagreement between the husband and wife, the genetic material must be donated to research or destroyed. They don't want to get involved."
But not all fertility clinics come up with such a contract, and when they don't, it can get messy, says Tami Clemenza-Wilson, a CPA and partner with Morrison, Brown, Argiz & Farra LLP (MBAF), an accounting firm in Miami.
Say a man and a woman are getting along, and he tells his wife that if something happens to him, he wants her to go have the kid. But then they have marital problems. He has to go back and take care of that in the estate-planning process or that child is going to be recognized as an heir, Clemenza-Wilson says.
She has her clients check out the legality of the documents they sign at the clinic, and then incorporates them into an estate plan.