I Want To Put A Baby In You: I Want Children After I Am Dead
How does the law handle requests from people who want their gametes to be used after their death?
Last week I discussed post-mortem sperm and egg retrieval. Unsurprisingly, there remain complicated issues for spouses, fiancés, and other family members that want to use a deceased person’s sperm or eggs. But what about the flip side to this issue? How does the law handle those who make clear that they want their gametes to be used after their death?
Leaving Sperm in a Will. A California Superior Court in the case of Hecht v. Superior Court faced one of the earliest instances of this question. The facts of the case centered on William Kane, who had decided to commit suicide, but first had his sperm cryopreserved for his girlfriend’s subsequent use. The girlfriend, Deborah Hecht, was on board with the plan to conceive Kane’s children after his death.
Kane signed a consent form with the sperm bank. And he made clear in his will that he not only consented to the use of his sperm, but in fact wanted Hecht to conceive a baby using that sperm. Despite this clarity, Kane’s two adult children from a prior marriage brought suit to stop Hecht’s use of the sperm and asked that the sperm be destroyed. The lower court was persuaded by the children and issued an order as to the sperm’s destruction. Hecht sought to vacate the order and the appellate court ultimately ruled in Hecht’s favor, allowing her use of the sperm.
The Business Case For AI At Your Law Firm
Touchingly, Kane had even acknowledged his unborn children in his suicide note: “[T]his letter is for my posthumous offspring, as well, with the thought that I have loved you in my dreams, even though I never got to see you born.” Unfortunately, despite her hard-fought legal victory, Hecht was never able to conceive using Kane’s sperm.
A World View. The U.S., of course, is not the only country to struggle with posthumous conception. But while no state in the United States has banned the use of sperm or eggs after the progenitor has passed (regardless of consent), many other countries have. In France, for instance, a cancer patient consented to his wife extracting and using his sperm for conception after his death. However, shortly thereafter, a policy was adopted and upheld by the French courts forbidding post-mortem conception. Similarly, Germany, Sweden, and Canada all have laws that prohibit posthumous retrieval of genetic material for conception.
By contrast, a number of sperm banks in the U.S. offer special discounts to military members (first year of cryopreservation free!), and feature stories of widows of soldiers who died in combat that went on to have children with their late spouses’ sperm.
Parental Rights for the Dead. By 2011, the federal government had received over 100 petitions for Social Security benefits for posthumous conceived children. In Astrue v. Capato, the U.S. Supreme Court punted resolution of these claims to the states. The Court held that a child’s eligibility to Social Security benefits from a deceased parent turns on whether the applicable birth state allows the posthumously conceived child to inherit from the deceased parent.
Sponsored
Is The Future Of Law Distributed? Lessons From The Tech Adoption Curve
The Business Case For AI At Your Law Firm
Legal AI: 3 Steps Law Firms Should Take Now
Navigating Financial Success by Avoiding Common Pitfalls and Maximizing Firm Performance
Unfortunately, for a case involving twins born in Florida, the state does not recognize a posthumously conceived child’s (defined as a child born more than 9 months after a parent’s death) right to inherit. By contrast, on the other hand, Colorado allows a posthumously conceived child to inherit from an already deceased parent if he or she was conceived within 36 months of the parent’s death or born within 45 months of the death.
A Brave New World — The Biowill. Irit Rosenblum, a prominent Israeli attorney, started the fascinating Biowill movement. You can check out this YouTube video for additional information and dramatic music! The Biowill, in short, is a way for a person to specifically will their eggs or sperm to be donated and used for conception by others. It is marketed for extreme sportsmen and those in high risk professions.
It’s also described as solving a problem for those who need to turn to donors. Intended parents, at least in the U.S., generally turn to anonymous donors, leaving them without information about their child’s biological and social background. The Biowill fills in that gap, often providing another set of genetic grandparents for the child, and takes away any concern of the donor attempting to claim parental rights (after all, he or she is dead).
For the donors, there is a sense of biological legacy knowing that he (or she) may still have descendants, even if he does not live to know and raise his biological child. Rosenblum has seen her family-building philosophy successfully play out in Israeli courts, both for deceased sperm and egg donors to donate their gametes to others wishing to have a family.
The U.S. has not yet reached the point where posthumous donation of gametes for third-party conception is common. But I stress the word “yet.” While some surely consider the thought to be “creepy,” the notion of what constitutes a family continues to evolve. Indeed, what is unheard of today may, in a generation, be a commonplace birth story.
Sponsored
Generative AI In Legal Work — What’s Fact And What’s Fiction?
Navigating Financial Success by Avoiding Common Pitfalls and Maximizing Firm Performance
Earlier: I Want To Put A Baby In You: Removing Eggs And Sperm After Death
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.
