There have been a couple of recent cases discussed here that center on posthumous children. The discussion in the posts has been interesting and I thought I might try to pull some of the thoughts generated together.
To start with, though, I suppose I need to define my topic. A posthumous child is a child born after the death of a person who would have been a parent had that person survived. (I know that this is an awkward phrasing and perhaps it seems unnatural, but I don’t want to say born “after the death of a parent” and then go on to discuss if the decedent should be considered a parent. It’s seems to me that shorter definition will only muddy the waters.)
Historically, there was really only one circumstance where this would arise: A man would die while a woman was pregnant with a child. Either because he was the husband of the woman or because the child was conceived via intercourse with him, he would have been recognized as the father of the child when it was born.
I think that where the man and woman were married, the child was routinely considered to be the legal child of the deceased husband. (You may have read a book or seen a movie where a man goes off to war and is killed leaving behind a pregnant widow. He would be identified as the father of the child and the child would be eligible for whatever benefits as child born before his death would have received.)
My guess would be that if the man and woman weren’t married the result was not so uniform. After all, for a significant chunk of our history the man would not have been considered a legal father even if he was still alive.
But as in so many thing, the arrival of assisted reproduction posed new questions. Before ART the longest time that could possibly elapse between the death of the man and the birth of the child was nine months because conception had to occur before the man died. Now, with cryopreservation, sperm can be used for insemination many years after the death of the man who produced the sperm. Further, the sperm can be harvested from a man and preserved after he has died. And now eggs, too, can be cryopreserved for later use and harvested after death as well.
These developments mean we face a host of new questions about posthumous parenthood. For instance, does it matter how long after the death of the gamete provider the child is conceived? Does it matter if the gamete provider specifically contemplated use of the gametes after his/her death?
But it seems to me there’s a first question: Why are we asking these questions at all? Why do we need to decide whether the person whose eggs or sperm are used is a legal parent?
The question of how the people raising the child refer to the person who provided the gametes is clearly a personal one, well beyond the scope of this blog. My question is whether the law should recognize this person as a parent. And this brings me to the realization I had reading the comments to the earlier posts–to the extent being a legal parent is about parental rights and parental responsibilities, it makes little sense to assign those to a person who is dead. I don’t see what that would accomplish.
Though I haven’t really studied it, the cases I’ve seen all come up in a specific context–whether the child is eligible to receive benefits of one sort or another that are ordinarily available to those who were children of the deceased.
But even in the case of children who were born before the death of the person in question, we don’t say that the deceased is the parent of those children after he/she has died and the law doesn’t recognize a continuing status as parent. Rather, we accept that the person was the parent and therefore the surviving children are eligible for the benefit.
This makes me think we really are asking the wrong question. We’re should not be asking whether the deceased gamete provider is the legal parent of the children. We should ask whether he/she was the parent of these children before his/her death. The thing is, if I pose the question this way, we may not like the answer. If the children weren’t even conceived before the person’s death it’s pretty tough to say he/she was a parent of those (non-existent) children before his/her death.
There is a problem here, though. Remember where this doctrine began–with men who died while their wives were pregnant? I’m not inclined to say they were parents at the time of their death either, yet there seems to be a strong inclination to provide the benefits. I actually think we could still get there–we just need to think about this slightly differently.
Ultimately the passage of time does make a difference to me. I’m not sure why it would make sense to provide those same benefits to children conceived and born five or ten years after the death of the gamete provider. Is there a test that might take passage of time into account?