Reimagining Postmortem Conception

52 Pages Posted: 17 Sep 2021

See all articles by Kristine S. Knaplund

Kristine S. Knaplund

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2021

Abstract

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one's gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents. And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception--a New York amendment effective in February 2021--the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive. This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.

Keywords: postmortem conception, cryopreservation, inheritance, in vitro fertilization, child

Suggested Citation

Knaplund, Kristine S., Reimagining Postmortem Conception (2021). Georgia State University Law Review, Vol. 37, No. 3, 2021, Pepperdine University Legal Studies Research Paper No. 2021/22, Available at SSRN: https://ssrn.com/abstract=3924658

Kristine S. Knaplund (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
54
Abstract Views
188
rank
469,406
PlumX Metrics