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Kristine S. Knaplund, Reimagining Postmortem Conception, 37 Ga. St. U. L. Rev. 905 (2021).

One of the ramifications of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization is the significant uncertainty it has created about the legal status of various reproductive technologies, given that many states will regulate abortion in ways that impact those technologies as well. In Reimagining Postmortem Conception, Professor Kristine Knaplund provides a comprehensive snapshot of the pre-Dobbs legal landscape regarding postmortem conception using reproductive technology and its effect on inheritance law. This 50-state survey provides an interesting example of the variety of regulatory strategies that can evolve in a contested legal area as well as the difficulties that such a patchwork might entail. For those interested in trusts and estates, family law, and health law, it will be an invaluable read.

Knaplund starts by surveying the current social and legal landscape. Opinion surveys indicate that a majority of Americans support postmortem conception, and that number rises if the decedent consented. On the ground, a small but growing number of people are cryopreserving sperm, ova, and embryos for the purpose of having children in the future, possibly including after death.  Further, there have been increasing requests for gamete retrieval from spouses who are recently deceased or exist in a vegetative state. While public sentiment regarding postmortem conception has been trending toward higher levels of approval, states have lacked uniformity in their regulatory response and, in particular, have failed to agree on the impact of postmortem conception on inheritance rights. Twenty-four states have addressed the inheritance question directly, with all but one establishing that postmortem children can inherit from a predeceased parent if certain conditions are met. The other twenty-six states take wildly varying approaches, with courts looking to parentage law or other statutes for clues to solve this legal question.

Posthumous children present two challenges for inheritance law. First, how can lawmakers ensure the orderly administration of estates, given that reproductive material can be stored for years or decades before being used? Second, how can courts determine whether the deceased prospective parent consented to the use of that reproductive material?

Knaplund explores these questions by examining in detail the strategies that states have pursued thus far. To solve the first problem, state legislatures have mandated strict time limits for the use of the reproductive material in order for the resulting child to qualify as an heir or beneficiary for inheritance purposes. In addition, many states require compliance with certain formalities, such as notice to the personal representative if there is a possibility of a posthumous child so that a share of the estate can be sequestered for this potential new heir or beneficiary. To solve the second problem, many statutes require that the child establish the predeceased parent’s consent either in writing, by clear and convincing evidence, or by presumption on the basis of marital status.

Knaplund presents five major critiques of these approaches. First, the complexity of requisite formalities can decrease compliance even for decedents who may have actually wanted their postmortem children to inherit. Second, the statutes are often unclear about their scope or application, using terminology like “conceived” or “begotten” without defining those terms. Third, there is often a mismatch between hospital policies for gamete retrieval and legal requirements. Fourth, most statutes require a biological connection to the child, which excludes parents who use donor reproductive material, such as infertile or gay and lesbian couples. Finally, the lack of uniformity among the states means that what qualifies as consent to the posthumous conception of a child in one state may not pass muster in another, causing problems after the passing of a parent if the family has migrated to a different state.

To promote the inheritance rights of posthumous children and improve the application of the law in this area, Knaplund proposes several legal reforms. For example, she would allow inheritance by posthumous children of non-genetic parents. She would also relax the more stringent requirements of timing and notice to the personal representative in light of the time required to grieve the passing of a family member as well as to conceive a child using assisted reproductive technology. As a pragmatic matter, she urges the promotion of uniform laws that would allow for the portability of consent across state lines. She also suggests simplifying the definition of a posthumously conceived child to mean one who is not in utero when the decedent dies, thus replacing more archaic and ambiguous language still found in many statutes.

These all seem to be modest and reasonable fixes, helping to align the law with the practicalities of postmortem conception. One open question, however, is whether public sentiment does in fact favor full inheritance rights for posthumous children. While the opinion surveys that Knaplund cites show support for postmortem conception generally, it is a different (but related) question whether posthumous children should inherit from a predeceased parent, especially when a postmortem child’s interest comes at the cost of other relatives known to the parent.

All in all, this piece represents impressive and exhaustive research into an important and evolving corner of inheritance law. While the future of reproductive technology is unclear after Dobbs, Knaplund provides us with a roadmap for making one concomitant of that technological innovation—inheritance rights—clearer.

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Cite as: Alexander Boni-Saenz, Posthumous Reproduction and Inheritance Law, JOTWELL (November 7, 2022) (reviewing Kristine S. Knaplund, Reimagining Postmortem Conception, 37 Ga. St. U. L. Rev. 905 (2021)), https://trustest.jotwell.com/posthumous-reproduction-and-inheritance-law/.