Postmortem Conception and a Father's Last Will
25 Pages Posted: 3 Nov 2008 Last revised: 8 Nov 2010
Date Written: October 31, 2008
Many men, including soldiers, cancer patients, and athletes, have elected to bank sperm. They do this with the intent of using it themselves in the future to father their own children. What inheritance-related issues arise if these men die, and their widows or girlfriends use the sperm to give birth to children? For a postmortem conception (PMC) child to inherit, the widow or girlfriend must obtain the sperm after the man dies, use it through assisted reproductive technology (ART) to become pregnant, and give birth to a child who can prove paternity and make a timely claim against the father's estate. This sometimes even occurs as a result of the sperm being retrieved from the man after his death, which the American Society of Reproductive Medicine prohibits if the man did not provide informed consent, but against which there is no express law. This article addresses the inheritance-related problems that can result from these activities, providing a comparative analysis of state statutory and case law, as well as a discussion of the relevant sections of the Uniform Status of Children of Assisted Conception Act (USCACA) and the Restatement of the Law Third-Property: Wills and Other Donative Transfers. It discusses the problems associated with not having a uniform national policy, and describes such policies that have been developed in other countries, including Great Britain, Canada, and Australia. Finally, it offers an analysis of the effects of three fundamental wills doctrines (the requirement of survivorship, the class-closing "rule of convenience," and the parol evidence rule) on the PMC child's ability to inherit.
Keywords: assisted reproductive technology, artificial insemination, sperm, inheritance, postmortem conception, postmortem conception child, child, father, mother, parentage, paternity, estate, reproduction, pregnancy, medical, conceive, survivorship, rule of convenience, parol evidence
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