Dying to Be a Father: Legal Paternity in Cases of Posthumous Conception
57 Pages Posted: 12 Sep 2007 Last revised: 14 May 2010
Date Written: September 1, 2007
The article addresses the determination of legal parenthood of a child conceived after her genetic father died. The currently available technology enables the harvest of sperm days after death, and, through the use of freezing techniques, artificial insemination and in vitro fertilization, enables birth years after the demise of the sperm provider. The various scenarios involving postmortem conception (PMC), and the resulting conflicts that may arise regarding the determination of paternity, have not yet been addressed satisfactorily by statutes or by case law. This article seeks to remedy this gap by providing a conceptual model with which to approach the issue. In addition to providing a framework for policymakers, this article contributes to the existing literature on three fronts. First, whereas the scholarship on PMC has focused thus far on specific derivatives of the question, such as eligibility for social security survivor's benefits or the status of the child as a legal heir, the model advanced here addresses the question of paternity at its core, and in a comprehensive manner. Second, the theoretical basis for the proposed model - the Relational Theory - has not yet been incorporated to questions of PMC. Third, an application of the proposed model supports the result that in some cases the paternity of the genetic father should be recognized alongside the paternity of the present spouse of the mother. This result is presented and defended here for the first time in the context of PMC.
Keywords: postmortem, conception, paternity, parenthood, determination, sperm, death, family
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