Post-Mortem Sperm Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows

Abstract:     
This article was prepared in conjunction with the Thurgood Marshall School of Law March, 2009 symposium on "Emerging Issues in Estate Planning, Probate & Trust Law." The article examines a relatively new assisted reproduction technique through which the sperm of a man who has recently died is retrieved after his death, cryopreserved, and then later used by a woman (spouse, partner, or other) to produce a child. While much has been written about posthumously-conceived children (children conceived from sperm that were banked by the father while he was alive), there has to date been little examination of the ramifications of post-mortem sperm retrieval. The article explores whether children who are born through use of this technique will be entitled to their father's property or governmental benefits as the father's surviving issue. The article examines in depth the arguments in Vernoff v. Astrue, a case that is currently under consideration by the federal Court of Appeals for the Ninth Circuit. The child who is the subject of this case is reportedly the first child who was born using posthumously-retrieved sperm. Her mother has sought Social Security benefits for the child, citing numerous other cases in which the Social Security Administration or the federal courts have granted such benefits to posthumously-conceived children. The article explains how the interaction among state parentage law, state probate law, and the Social Security Act will be used by the court to make a determination in this and subsequent cases.

Keywords: posthumous conception, sperm retrieval, sperm bank, social security, parentage, paternity, probate, assisted reproduction, assisted reproductive technology

JEL Classifications: K19, K39

Accepted Paper Series