Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, September 29, 2009

Alternative Reproductive Technologies Create Posthumous Heirs & Legal Problems

KindreganCharles P. Kindregan, Jr., (professor of law, Suffolk University) has posted on SSRN his article entitled Dead Dads: Thawing an Heir from the Freezer, 35 William Mitchell L. Rev. 433 (2009).

The abstract of the article is below:

In Dead Dads: Thawing an Heir from the Freezerthe author examines the difficult legal problems created by the growing practice of using the cryopreserved gametes of deceased persons to conceive a posthumous child. The law has long recognized the legal parental status of a man whose fetus is in utero in his wife's pregnancy at the time of the father's death, but developments in reproductive science has now made it possible to conceive a child after either a parents' death. This has been made more complicated by the use of assisted reproduction by unmarried persons, its growing use by same-sex couples and the developing marketplace for stored sperm, eggs and embryos. The science of preserving sperm or embryos by cryopreservation is a fact, and research is improving the preservation of eggs as well. However, the law has been slow to deal with the post-death conception of a child. An optional section of the Uniform Parentage Act, the new A.B.A. Model Act Governing Assisted Reproductive Technology (2008) and new additions to the Uniform Probate Code (2008) signal an attempt to change this, but except for a California statute and minor efforts by other jurisdictions, states have not attempted to deal with this by statute. Instead, the courts have had to struggle with the issued in the context of social security rights, disputes over the ownership of cryopreserved embryos, or the interpretation of gratuitous transfer instruments. The author argues that there is no legitimate reason for treating posthumous children differently from other children, although recognizing that legislatures should enact laws to deal with issues such as efficiency in timely estate distribution.

This article was drafted before and does not examine the recently proposed amendments to the Uniform Probate Code dealing with posthumous reproduction and which if enacted by the states would comply with the author's urging support for uniform legislation on the subject.


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