Unforeseen Consequences of Post-Mortem Procreation

Browne C. Lewis, Graveside Birthday Parties:  The Legal Consequences of Forming Families Posthumously, 60 Case W. Res. L. Rev. 1159  (2009-2010), available at SSRN.

“Procreation is no longer left to the living” proclaims Professor Browne Lewis in this essay entitled Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously. (P. 1159)  She explores three legal issues that have resulted from posthumous reproduction.  Specifically she addresses the issues of parentage, procreative freedom, and probate.  Professor Lewis examines the steps that must be taken to identify the legal parents of posthumously conceived children.  She further discusses the rights of the deceased gamete providers.  Finally, she focuses on the inheritance rights of these posthumously conceived children.

In the not so distant past, a fertile man and woman needed to have sexual intercourse to create a baby.  A traditional family consisted of a husband, wife and their children.  The children were either the biological children of the husband and wife or their adopted children.  A child who was born into a marital union was considered legitimate and one born outside of the marriage was illegitimate.  Reproductive technology has altered the American family.  Intercourse is no longer necessary to create a baby.  Although reproductive technology has resulted in many medical miracles, the legal community has been slow to respond to the medical advancements.  Further, the legal community must deal with mistakes that inevitably occur.

Assisted reproductive technology was first used to assist infertile married couples in becoming pregnant.  It has also been used to assist same sex couples and single individuals to create families with children.  Methods to extract and freeze sperm and eggs have allowed deceased individuals to become parents.  A dead man’s sperm may be used to impregnate a woman long after his death.  A surrogate may use the eggs of a dead woman to conceive a child.  Professor Lewis laments that while physicians hail the benefits of the procedures, lawyers are forced to deal with unforeseen legal consequences.

Professor Lewis explains the importance of determining the legal parents of a posthumously conceived child.  Inheritance through intestacy, financial support, and government benefits require a legal parent-child relationship.  With respect to posthumously conceived children, the legal parent is sometimes difficult to identify.  For example, when a surrogate carries a baby, there may be two women who claim to be the mother of that baby.  Lewis identifies the two common types of surrogacy agreements—traditional and gestational.  Traditional surrogates use their ova and their womb to carry a baby for someone else.  Although the surrogate and the baby have a genetic connection, that may not be enough to establish a legal relationship.  A gestational surrogate is not biologically linked to the baby that she carries.  Yet, that lack of a biological relationship does not necessarily preclude a legal relationship between a gestational surrogate and the baby she carries.  Professor Lewis points out that legislatures have provided little guidance and Courts have dealt with the legal issues on a case-by-case basis.  She compares cases in New Jersey, California and Ohio that illustrate the variances among courts.

Issues of paternity are also complicated.  A majority of state legislatures have enacted legislation to designate the paternity of children conceived using artificial insemination.  According to Professor Lewis, in a majority of jurisdictions, a sperm donor is never the legal father of the child.  She suggests that courts should allocate paternity based on the best interests of the artificially conceived child.

I would love to see Part II of Professor Lewis’ essay expanded to a separate article.  In this section we see the intersection of property law and decedents’ estates.  Professor Lewis ponders “whether permitting posthumous conception interferes with the reproductive rights of the deceased gamete provider.” (P. 1169) She asks, “who has the legal right to possess the dead man’s sperm.”  (P. 1169) Currently, courts evaluate requests for such sperm on a case-by-case basis.

In the final portion of her essay, Professor Lewis ponders how posthumously conceived children affect the distribution of a man’s estate.  Very few states have even attempted to address the issue.  Of the eleven states that have legislation, six adopt the Uniform Parentage Act and five set forth independent solutions.  Therefore, for a majority of jurisdictions, courts have determined the inheritance rights of such children on a case-by-case basis.  Should posthumously conceived children have the same rights as a man’s other children?  If so, how are the posthumously conceived child’s rights balanced against a state’s desire for a timely and orderly distribution of a decedent’s estate?

The legal community has been slow to respond to the many legal issues that have developed as a result of the medical advancements that have enhanced the way children are conceived.   In this essay, Professor Lewis  begins to explore this new and exciting area of law.   I agree with her as she states that the medical community “will continue to push the envelope when it comes to reproductive technology.”  (P. 1182)  The legal community will need to respond accordingly.  I look forward to the many conversations and debates.