30 Pages Posted: 9 Jul 2010
Date Written: 2010
Two married heterosexual couples are in a car crash. The husband of couple # 1 dies instantly, as does the wife of couple # 2. At the hospital, at their spouses’ requests, doctors are able to retrieve Husband # 1's (H1) sperm and Wife # 2's (W2) ova for cryopreservation. Two years later, Wife #1 (W1) uses her dead husband’s frozen sperm to become pregnant; Husband # 2 (H2) uses his dead wife’s frozen ova and arranges with a surrogate to have a baby. Will the predeceased spouses be presumed to be parents of the resulting children, conceived and born years after their deaths?
Until recently, few states had a clear answer to this question. The 2008 version of the Uniform Probate Code (UPC) attempted to resolve a broad range of issues that arise with assisted reproduction, including the issue of postmortem conception. This Article examines the 2008 provisions of the Uniform Probate Code regarding assisted reproduction, and in particular the proposed standards for determining parentage when a child is conceived after one of the intended parents has died. It briefly discusses the history of legislation covering assisted reproduction, from the first statutes that dealt with married couples using donated sperm, to the more comprehensive laws today. It also reviews existing law and cases on parentage and inheritance for postmortem conception children. In addition, it applies the new UPC provisions to different scenarios in which a man or woman has died before conception, or a surrogacy agreement, has occurred. The Article concludes with recommendations for changes to the UPC.
Keywords: Uniform Probate Code, probate, assisted reproduction, ART, sperm, child, parentage, parent, death, postmortem, conception, ova, egg, sperm, surrogacy, conceive, born, birth, inheritance, rights, frozen, cryopreservation, hospital, medical, marriage, spouse
Suggested Citation: Suggested Citation
Knaplund, Kristine S., The New Uniform Probate Code's Surprising Gender Inequities (2010). Duke Journal of Gender Law & Policy, 2011; Pepperdine University Legal Studies Research Paper No. 2010/14. Available at SSRN: https://ssrn.com/abstract=1636531