Legal complications of posthumous reproduction

Michael Cook
14 September 2013
Reproduced with Permission

Thanks to frozen sperm and frozen embryos, it is possible for a man to have offspring after death, even many years after his death. This is leading to complex legal issues for rich and poor alike, according to an article in the New York Times.

Few states regulate posthumous reproduction and few wills take it into account. Absent any instructions, then, "children born with the new technology are entitled to inherit with the same rights as a natural-born child," according to a New York expert on probate.

The New York case of In re Martin B illustrates the upscale complications. In 2001 Martin B died, leaving a substantial estate to his two sons and any grandchildren. However, one of his sons predeceased him, leaving some frozen semen to be used at the discretion of his wife. In 2004 and 2006 she used it to conceive two boys. Hundreds of millions of dollars were at stake.

The New York County Surrogate's Court ruled that posthumously conceived children could be beneficiaries of the will. While this was not disputed, the surviving son's lawyer gave the NYTimes a scathing interpretation of the use of the semen. "My take is here is a woman who married into a wealthy family. The only way she could stay on the gravy train was by having his children."

Down-market complications involve government benefits. In 2012, the US Supreme Court ruled that children conceived after a parent's death are not entitled to Social Security Survivors benefits if the laws in the state that the parent's will was signed in forbid it. As a result, twins conceived after the death of Karen Capato's husband were denied benefits.

Lawyers who spoke to the NYTimes said that people must understand that a legal right to conceive children posthumously does not automatically confer a right to inheritance rights for these children. If arrangements are made, people should remember that children born to unwed parents should not be excluded. Death ends a marriage, even if children can still be conceived. And clients should specify a time limit. Otherwise, children could be conceived decades later and lay a claim to their father's estate.

"Posthumous reproduction is the perfect storm of competing interests," says Susan M. Wolf, of the University of Minnesota School of Law. "There's the surviving partner who wants to reproduce, the interests of the deceased while they were alive or as they memorialized them, the pre-existing kids who don't want their interest diluted and finally the kids who are brought into the picture but who may be financially most at risk."