Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, August 31, 2010

Lewis: "Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously"

Browne C. Lewis (Cleveland-Marshall College of Law) has posted "Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously" on SSRN.  Here is the abstract: 

As a result of reproductive technology, procreation is no longer left to the living. The discovery of effective methods to extract and freeze sperm has led to posthumous reproduction. Consequently, a man’s child may be conceived long after the man is dead. Traditionally, a family consisted of a husband, a wife and their adopted or biological children. High divorce rates led to single parent families and blended families consisting of step children. As a result of the sexual revolution, some families were made up of a man, his “old lady”, and their non-marital children. Currently, assisted reproduction enables infertile couples, single persons, and same-sex couples to create families with children. Some men and women want to create families with the loves of their lives. These persons refuse to let a little thing like death prevent them from conceiving their love children Since children can now be conceived using the genetic material of dead people, those love children can be conceived. In addition, posthumous reproduction permits families to create living memorials to their dead love ones.

A dead man’s sperm can be used to impregnate a woman years after his death. A surrogate can use the eggs of a dead woman to conceive a child. These are just a few of the miracles that are possible because of the advancements in reproductive technology. Physicians and other health care providers hail the beneficial uses of reproductive technology. Scientists marvel over the miracles performed. However, lawyers and others in the legal community are forced to deal with the mistakes that have been made. Even when everything goes according to plan, families are forced to deal with the legal consequences that arise from the use of reproductive technology.

As a consequence of the availability and use of reproductive technology that make posthumous reproduction possible, courts are forced to designate legal parents for the children conceived. Several persons may be vying for the roles of mom and dad. Further, courts have to decide whether or not dead people have reproductive rights and determine the steps that are necessary to protect those rights. Doctors need guidance when deciding if they should extract sperm from dead men and turn it over to the requesting party. Once posthumously conceived children are born, legislatures and courts must ensure that they are financially supported. That financial support may take the form of life-time support, inheritance or government survival benefits. The amount of financial support the posthumously conceived child receives depends upon the manner in which the law classifies the child. Due to the lack of legal regulations with regards to posthumous reproduction, the law will continue to play catch up when it comes to issues of parentage, procreation, and probate.


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