The Problem of Posthumous Children

A news story, once again out of the UK, prompts me to think a bit about this topic.  A woman wishes to use the sperm of her deceased husband to become pregnant.   The story documents one particular instance of this and discusses a second similar one.   Others surface in the media from time to time.   These cases raise a couple of different questions and offer me a chance to revisit a topic I wrote about a long time ago.

One question, the one most directly raised in the article, concerns the consent of the donor.   It seems fairly obvious that if the donor provided sperm for the purpose of inseminating a partner before death or disability intervened, that would be fine.   But suppose the donor does not do this, as was the case here?  Under what circumstances should a person be permitted to gather the sperm after death?   You could imagine a continuum from a situation where there was a clear indication of the donor’s intent, but he hadn’t gotten around to actually donating yet to a situation where the parties had never considered it (around the middle of the continuum) to a situation where the prospective donor had declined to provide sperm.   Seems to me in the first instance (clear intention to donate) it would be easy to say “yes,” in the last (clear intention not to donate) it would be easy to say “no,” and the middle cases might be hard.

But I want to focus on a second question, one raised in the article only in passing at the end.   Assuming the sperm is obtained and used, is the man a legal father?

In a number of posts a while ago I considered the parental status of a guy from a one-night stand.   Although he has a genetic link to a child that results from the one-night stand, I think it is a mistake to recognize him as a legal parent of the child.   (I really went into this at some length and you can go back with that link and poke around for a bit to see the argument I made.)   More generally, the existence of a genetic link ought not to make one the parent of a child.   Thus, a sperm donor is not a father.  An egg donor is not a mother.   And the one-night stand guy is nothing more than a sperm donor.

With that in mind, what about the deceased husband?  It seems to me to be consistent, I have to say he should not be a legal parent.   He’d have a genetic link to the child, of course.   And he had a pre-existing relationship with the mother of the child, which surely distinguishes him from the one-night stand guy.   But of necessity, he couldn’t have any actual relationship with the child nor with the mother while she was pregnant.

I suppose the next question is whether this is a bad thing, to say he is not a legal father.   Answering that, I think, requires a bit of care.  What does it matter if he is not the legal father?   I don’t for a moment mean to suggest that the mother couldn’t tell  the children all about the man and who he was and that his sperm was used and so on.   As a social matter, his siblings or parents may have the relationship of extended family.   This is quite consistent with saying both that he is a not a father and that he may still be an interesting and an important figure.

One reason this question comes up in law, at least in the US, is the claim that the children are entitled to receive benefits (think social security) generally reserved for children of the decedent.   While that’s clearly an important question and one worthy of some thought, it seems to me that the answer to that question ought not to determine the deceased husband’s parental status.  In other words, however you answer the benefits question, one could establish that as policy without reference to the question of whether the man is a legal father.

I think I’ve gone on long enough here.  Ultimately, this is an instance where, if you think about it carefully, I’m not sure there is any reason why we would want the deceased husband to be a legal father.  And, by the way, I see no reason the same logic wouldn’t apply to women/egg donors.