Another Posthumous Child Problem

A couple of weeks ago I wrote about a recent case out of the Third Circuit.    There a women conceived twins using the cryopreserved sperm of her deceased husband.  The twins were born 18 months after the husband’s death.  Are the children entitled to the husband’s social security survivor benefits as a dependant children?   (You can go read that post, but the court concluded the twins were the husband’s children but sent the case back to the trial court to figure out if they were dependant at the time of the husband’s death.  Since at the time of death the twins had not been conceived I’m interested to see how the court manages that inquiry.)

Anyway, here’s another case come along with a slightly different set of facts.     Gary Prystauk was a retired Newark, New Jersey police captain.  He and his wife Francia were married for 18 years.  They tried to have children and Francia suffered several miscarriages.   Then in 2006 Gary Prystauk was killed in a scuba accident.   Francia had sperm harvested from his body and frozen.   She later used it to conceive a child who is now three.  The question is whether the child is entitled to pension benefits as Gary Prystauk’s son. 

In Francia’s view the case is simple:   “Jacob had a father,” she said, “He just happened to pass away.” 

I’m afraid that is putting the rabbit in the hat.   The question is whether Gary is Jacob’s father and, for my purposes, why that would be.   This case is different from the earlier one’s because while there is evidence that Gary wanted to be a father in a general sort of way, he took no steps to have his sperm preserved.  There’s no basis on which to conclude he would have wanted to be a father after his death.  (I’m not even sure that sentence has meaning, but you probably get the idea I’m driving at.)

If Gary is a father, it must be because his sperm was used.   Is that alone enough, even if there’s no evidence he intended this to happen this way?   Is it important that Francia had been married to him?   

Suppose someone broke into a sperm bank and stole a sample and then used it to become pregnant.   Is the provider of the sperm a father to the resulting child?  Would the circumstance under which the man provided the sperm matter?  Is that different from this case? 

I am not sure what the answer is.   I am troubled by the idea that the deceased men in these cases are the father of the children involved.    Remember that sperm can be frozen a long long time.   Is there any limit to how long after death a man can become a father once we start down that road? 

Just wondering……

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9 responses to “Another Posthumous Child Problem

  1. Of course he IS the father, whether or not he can or should be held financially responsible for the child is an entirely seperate matter. Of course he IS the father and if a man becomes a father by virtue of an act of stealth or force I would think he could sue to recover his expenses from that person who sole his genes and reproduced them without his consent. But he is the father and he should be recorded as such. If he’s dead he can’t very well be held financially responsible unless he specifically set up some kind of trust. Someone else can take responsibility on behalf of the father but they can’t be the father unless they are the source of another person’s life. There is, like it or not, still Father the noun and there would be no father the verb without father the noun.

    • This is one of those moments when I’m not sure what you mean by “of course he is the father.” He is unquestionably the source of the DNA. But he will never play any role in the child’s life. What does it mean, then, to say he is the father? That the child might have a claim on his estate?

      On many levels it doesn’t make sense to me to call him the child’s father. If the mother remarries and then, in consultation with her new husband, proceeds with a pregnancy using the dead man’s sperm, I think I’d rather recognize the new husband as father. Isn’t that better for all concerned.
      (I do not mean that the child shouldn’t be told the truth, by the way.)

      Perhaps this just exposes once again the rift between us? I think we should define the term “father” in a way that makes sense and serves our societal interests–say in ensuring the wellbeing of children. I think you might say the term has a fixed (and natural?) meaning and we cannot change that?

      If this is correct than for you the answer is obvious and cannot be changed but for me it is up for grabs.

      • I think motherhood and fatherhood are first defined bymaternal and paternal relateness – just as a matter of medical fact. There really is no artificial reproduction, all children are currently the result of human reproduction by a mother (maternally related female) and father (paternally related male). The 3rd party is anyone that assists those two parents in some sort of non-contact reproduction in a lab either with IVF or in a doctors office with some kind of mechanical insemination mechanism. The mother and father that created the child may or may not have their identities recorded, they may or may not raise the child – that all comes secondary to the parents reproducing to create the child so all I’m saying is that whether a man is alive or dead, he becomes the father when he is the paternally related male – its important to aknowledge that placement in a child’s paternal lineage if you can because its the basis for defining the child’s relationship to other people in the paternal line, ie siblings, aunts, uncles, grandparents, cousins etc.
        Whether his identity is even recorded is another matter. I’d imagine if a woman wanted her new husband to be recorded as the paternally related male to a child born of her reproduction with a deceased spouse – she would not write that down. However if she wanted her deceased spouse to be listed as the father of her child then you’d have the complications of what financial assistance does the dead man owe to a child created after his death. I suppose if he directed his wife to do it and set up some kind of trust his estate would be accountable. You’d play hell getting the state to give survivor benefits to the kid though, at least I think so.

        Just as an asside I was thinking the other day about all the people that say they earned the right to be called mother or father of a child they adopted because of being there day in and day out for 18 years. I thought well if you really think its 18 years of “being there” that earned you the right to be called mom or dad, then why didn’t you wait until the kid turned 18 to ask them to call you that? People that adopt start calling themselves mom and dad the day the adoption decree is signed long before any of the work they say it takes to become a mother or father is ever performed. Not that I think they don’t have the right to be called mom or dad upon the signing of an adoption decree, its just a little bit high and mighty to say giving birth does not qualify a woman to call herself a mother, or dna does not qualify a man to call himself father when I don’t see people who are not related by birth or dna waiting a real long time to claim the title themselves.

  2. Wonderfully provocative post as always! I think you have asked the right questions. For me, ultimately the decision should turn on whether the decedent expressed an unequivocal manifestation of intent to conceive the child at issue. To do otherwise could lead to a parade of horribles as I have previously pointed out (i.e. Julie Garber, whose parents sought to use embryos she created prior to undergoing unsuccessful chemotherapy to create a grandchild after she tragically lost her cancer battle).

    • What about the passage of time? Suppose the woman waits twenty years (okay–improbable, I know.) Somehow that matters to me, but I’m having trouble articulating why exactly that is so.

      • That is an interesting question Professor Shapiro though I do not believe passage of time would in anyway mitigate the prior intent or vitiate the consent to the use of that sperm. Let me pose a hypothetical to you: what if a married couple underwent IVF and had a child. As a result of the IVF, they had numerous frozen embryos available to them and desired to have a sibling for their child. Would it matter if they used those embryos 1 or 20 years later? If not, why impose an additional restriction merely because the surviving spouse delayed in the use of the embryos? Alternatively, what if one of the parents died before a pregnancy was achieved. Would we deny the surviving spouse the right to use those frozen embryos to bring that sibling into the world? I realize the focus of your article is about posthumous donation. However, I am wondering if there is a valid basis to make a distinction between a posthumous donation and an inter vivos gamete donation where the stated intent is identical.

        The hypothetical I have more trouble with is whether the surviving spouse (who presumably inherits these embryos) has the right to donate the remaining frozen embryos absent some clear intent by the decedent that they can be used by anyone other than his or her spouse.

        I think we can eliminate many of these thorny issues if we focus on the ultimate intent of the gamete providers. Unless they imposed some restrictions on their use then, in my opinion, the most equitable result would be to respect the previously stated intent.

        • Perhaps there is an underlying question here–what do we mean when we say the deceased husband is the father? I see several possible answers.

          Surely the wife who uses his sperm can raise the child and teach the child that her/his father is the deceased spouse. But that is really not the question that I’m really thinking about. I mean to think about this as “father” gets used in law.

          To the extent that being a legal father means you have various rights/obligations, it makes little sense to say that the deceased man is the father. He is, after all, dead. He cannot exercise the rights nor can he (as opposed to his estate) fulfill the obligations. A child growing up with a living legal mother and a pre-deceased (legal?) father is not (to my mind) growing up in a two parent household.

          There are, of course, subsidiary legal reasons–like eligibility for pensions, social security, etc. Here I do want to think about the passage of time. The most obvious problem would be settling an estate. Suppose there is a portion to be split among the children of the deceased. How long do we have to wait before we know how many children there are? If there are three children a year after the man dies can we split that children’s share three ways and call it good? What if a fourth child is born from frozen sperm five years later? Does child get to claim something from each of the previously born siblings? Or do we just hold back a portion just in case?

          The social security/pension problem is different. But here, too, I see trouble with open-ended commitments that can arise years after the death of the man.

          One thing that makes this hard, I think, is that we all agree (I think) that if the woman is actually pregnant when the husband dies, then the child is his child, eligible for benefits, etc. That means if we want to treat posthumously conceived (as opposed to posthumously born) children differently we have to articulate a rational for that treatment. I think I’ll give that a try in a post shortly.

  3. Intention does not serve as a litmus test for fatherhood by natural conception. When it comes to unassisted conception, the law accepts that people can father children in a drunken stupor without intending to.
    the law also acknowledges paternity by intercourse even if it occurred by fraud , say the woman swore up and down that she was using birth control when she wasn’t. I therefore see no reason to factor the deceased’s intent.

    However, I would not count him as a father for social security benefits or anything like that. I am not sure what the legal mechanism would be.

    And yeah, I am also very disturbed that the possibility of creating a child decades after the man has died, really disturbed. But I don’t think that refusing to call him a father makes it any less disturbing, it seems more like stikcing ones head in the sand.

  4. The other poster reminds me that I owe you a bit more respect. You are a professor of law which is why I read your blog and I learn a tremendous amount from reading here.
    You do raise excellent points about the legality of it all. I will always maintain that who is or is not a parent has nothing to do with what is “best” for the child – who should have custody of the child definately relates to what is best for the child. I am making that statement in specific response to your comment that “I think I’d rather recognize the new husband as father. Isn’t that better for all concerned.” What we’d rather do has little to do with what is or is not a fact as a starting point. There are obviously good reasons to appoint someone else as a child’s father figure if the child’s father is dead – I think that can be done once its established who the child is paternally related to. And then I think we are much closer in agreement.

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