Sunday, September 14, 2008
Browne C. Lewis (Cleveland State University - Cleveland-Marshall College of Law) has posted Dead Men Reproducing: Responding to the Existence of Afterdeath Children on SSRN. Here is the abstract:
Medical advances currently available permit dead men to reproduce. Sperm can be successfully stored for at least ten years. Therefore, a man's heirs may be created years after his death. Recently, this event has gone from a possibility to a reality. More and more women are choosing to conceive children using the sperm of their dead husbands or boy friends.
Widows of soldiers killed in the wars in Iraq and Afghanistan have conceived children through artificial insemination using their dead husbands' sperm. The process of creating afterdeath children can occur in two contexts. Scenario One - Prior to going to war, the man has his sperm extracted and placed in a sperm bank. If the man does not return from the war, his wife or girl friend uses his stored sperm to create his child. Scenario Two - The man is killed in the war. His wife or girl friend has the doctor harvest sperm from his dead body. Then, she uses that sperm to conceive his child. Either scenario results in the existence of an afterdeath child that needs financial support.
The law has not kept pace with the reproductive technology. Hence, when the mothers of the posthumously conceived children file social security surviving children claims on behalf of their children, the claims are often rejected. The children are denied benefits because the agency is not equipped to deal with "survivors" who did not exist at the time that the insured worker died. The resolution of these Social Security cases often turns on the manner in which the children are classified under the states' intestacy systems. If the child is eligible to inherit under the intestacy system, the child is entitled to social security survivor's benefits.
The legal issue examined in this article is: whether a posthumously conceived child should have the opportunity to inherit from his or her father. The resolution of that issue is important because the existence of posthumously conceived children has the potential to impact the distribution of a man's estate. If the man dies with a validly executed will leaving his estate to his children, the question becomes whether or not posthumously conceived children should be included in the definition of "children". In the event that a man dies without a will, the question to be resolved is whether or not posthumously conceived children should be considered heirs under the intestacy system.
As long as the possibility exists for dead men to reproduce, the courts and the legislatures must take steps to deal with the rights of the resulting children. Any system put in place must balance the interests of the state, the existing heirs, the decedent, and the posthumously conceived child. To guarantee a fair balance, state legislatures must give posthumously conceived children the opportunity to inherit from their deceased fathers. Nonetheless, the opportunity to inherit should not be a right to inherit. Consequently, the legislatures should only give posthumously conceived children the chance to inherit if they satisfy certain conditions.