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There are approximately 400,000 frozen embryos stored in this country and untold thousands of vials of frozen sperm. In the future, techniques will likely be refined to store human eggs, and despite contemporary opposition, cloning might also some day become an acceptable reproductive mechanism. Many questions associated with the ability to reproduce months, years, or even decades after one’s death using frozen sperm or embryos are beginning to emerge. How should the American legal system handle questions relating to posthumous reproduction and inheritance rights, Social Security benefits and other issues? The basic approach should require evidence of the deceased parent’s intentions, giving deference to intent. The possibility of posthumous reproduction can complicate the execution of wills and distribution of property. If a decedent with stored semen or embryos leaves his estate to “all my children,” should it be distributed only to existing children, or should distribution be delayed to determine whether any children will be produced posthumously? The situation should be addressed by a rebuttable presumption that, absent an explicit provision in the will for posthumously created children, the will does not provide for them. The presumption could be rebutted by evidence that the deceased intended to provide for subsequently produced children but had not yet altered his will at the time of his death. Such evidence could consist of conversations with family members or an appointment with an attorney for the purpose of revising the will. Several states, including Colorado, Delaware, Florida, Texas, Virginia, Washington and Wyoming, have already adopted a similar policy. The state statutes typically provide that if an individual becomes a parent through assisted reproduction after death, the deceased will not be deemed a parent of the resulting child unless the deceased consented in writing to being a parent under such circumstances. California is considering a bill that would grant inheritance rights to children conceived within a year of the parent’s death if the parent documented in writing his or her intent to conceive an heir posthumously. The one-year limitation period, however, is problematic because it will likely force some grieving widows to conceive before they are emotionally prepared to do so. While avoiding undue delays in the distribution of estates is a worthy policy goal, California would be wise to consider a longer time frame, such as three to five years. The Social Security Administration has denied several children’s insurance benefits applications made by mothers who became pregnant after their husbands’ deaths using the husbands’ stored sperm or embryos. The award of child insurance benefits, like inheritance rights, should depend upon proof of the deceased’s intent with respect to the posthumous creation of children. The best source for such evidence would be the will, but other authenticated written documents or even verbal conversations might be sufficient. This approach is consistent with a recent 9th U.S. Circuit Court of Appeals decision, Gillett-Netting v. Barnhart. Rhonda Gillett-Netting became pregnant 10 months after Robert Netting’s death from cancer, using semen that he had deposited upon receiving his diagnosis. Netting had explicitly confirmed that he wished to reproduce after his death if he did not survive his illness. Upon the birth of her twins, Gillett-Netting filed for benefits based on her late husband’s earnings. The court ruled that because the two were their father’s legitimate children under Arizona law, they were to be considered his dependants and were entitled to child’s insurance benefits. Sperm as property Posthumous conception raises several other issues as well. For example, family members can battle over possession of stored genetic material, especially when there is disagreement concerning whether a surviving partner should reproduce. In Hecht v. Superior Court, the adult children of the decedent disputed his lover’s right to obtain 12 vials of his sperm, which were ultimately awarded to her by the California Supreme Court after protracted litigation. In addition, doctors can now extract sperm within a day of a man’s death, if requested by family members or partners. In such cases, disputes may arise concerning whether the deceased would have wished to become a posthumous parent. These two circumstances can also be addressed by the proposed rule. There should be a rebuttable presumption against distribution of frozen sperm as part of an estate absent explicit instructions by the deceased in his will. The presumption could be rebutted with written documentation or oral proof of the deceased’s desire to reproduce posthumously. Similarly, sperm should not be extracted from a deceased without compelling evidence that he desired the procedure. Verification can come in the form of a will, a living will, or conversations with loved ones. Most American statutes were written long before posthumous reproduction was a recognized phenomenon. It is now time that the relevant state and federal laws be revised to respond to new realities. The rule of intent proposed here would protect the dual constitutional rights to reproduce and to avoid unwanted parenthood. It would also provide financial security for desired children who might otherwise live destitute. Sharona Hoffman is an associate professor at Case Western Reserve University School of Law. This is adapted in part from an article she co-authored with Andrew P. Morriss, Birth After Death: Perpetuities and the New Reproductive Technologies, 38 Georgia Law Review 575 (2004).

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