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Surrogacy and Other Parenting Options for Financial Planning

Hoeper Law Offices has recently assisted in a case involving genetic parents who were unable to have their child carried to term, and contracted to implant a fertilized egg in a gestational carrier. Contracts involving such arrangements have recently been approved by the Wisconsin Supreme Court in the case of Rosecky v. Schissel in a unanimous 7 – 0 decision. See 2013 WI 66.

An interesting aspect of the case is that while Wisconsin law currently provides in the statutes for the re-issuance of a birth certificate in the case of a surrogate birth (See Wisconsin Statute 69.14), in the Internet age it seemed desirable not to create a record which did not accurately reflect the genetic parentage. This would make moot the question of trying to recover and destroy an earlier birth certificate issued containing incorrect information.

The statutes allow the Department of Vital Records to hold off on issuing the birth certificate for a period of time, and that was done in the case that Hoeper Law Offices assisted on in order to facilitate the issuance of one correct birth certificate identifying the genetic parents as the parents of the child. In addition, a court record was created to absolve the surrogate carrier and her spouse from any rights and responsibilities concerning the child that was carried to term and delivered by a C-section.

Other technological advancements providing for parenting options, which were not available earlier, include a trend toward women harvesting and freezing their eggs for later fertilization and usage. This, apparently, is done to allow women to pursue career options without the disadvantage of the "biological clock" reducing their parenting options at a later date when their careers and marital situation is more settled. For each treatment cycle, medications can range between $1,750 and $6,000; surgery between $3,500 and $8,000; thawing and fertilization between $1,500 and $2,500; and the implantation process between $3,200 and $5,600. Annual storage costs can range between $100 and $1,000. Since insurance rarely covers these procedures, it might be advantageous to set up a fund for the same by way of a health savings account, which can be contributed to, as well, by potential grandparents.

A couple of riskier options for those who don't have the financial ability to raise cash out of earnings, would be borrowing against a 401K or tapping a Roth individual retirement account. If the employer allows it, a person can arrange a loan of 50 percent of the value of the 401K up to $50,000, but the same must be repaid within 5 years. Prospective grandparents, who may want to fund a part of the process and can, under current law, make annual tax exempt gifts of as much as $14,000 per donee.

The freezing of eggs for later fertilization obviously allows the potential for earlier compounding college savings plan accruals by setting up a 529 plan for the potential child at an earlier date. Because those plans require a named beneficiary, someone else would have to be designated as beneficiary until the child is born.

There are currently no federal guidelines concerning the inheritance status of frozen eggs. Therefore, potential parents and grandparents should consult with their estate planning attorney with respect to the law in their state of residence. Some states limit how long an estate can remain open after a decedent's passing. Therefore, if a grandparent bequest is made in a will, there might be a defacto limit as to how much time a mother might have before she has to bear the child so it receives distributions from the grandparent's estate. In addition, in such a case, it would be important to include a section in the will or trust that covers beneficiaries to be conceived in the future.

Categories: Estate Planning
Hoeper Law Offices - Waupun Probate Attorney
512 E. Main Street
Waupun, WI 53963
Phone: (920) 324-5050
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