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?