Posthumous Children/Posthumous Paternity?

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?

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2 responses to “Posthumous Children/Posthumous Paternity?

  1. My parents will always be my parents even after they die. And they won’t stop parenting either, I’ll still hear their voices in my head and think about how to make them proud of me, just as if they were alive. Now it I was a youngster when they died, and raised by adoptive or foster parents, then I guess I’d have a little confusion, because they’d all be “my parents” in different contexts and sometimes I wouldn’t know which parents I was being asked about.

    We shouldn’t allow labs to conceive children with dead people’s gametes. That’s how to avoid the problem of providing the kids benefits. We shouldn’t allow use of frozen gametes at all, or AI at all, either, of course. Marriages end at death, and with the end of marriage, the procreation right also ends.

    • I think I may not have made myself clear. My parents are both dead but to me they are my parents and, as you say, they will always be there (and I’ll always be learning from them and perhaps, in my own way, listening to them, too.) That’s a personal/social thing–the way I think of them, the way I talk about them.

      But while they were legally recognized as my parents during my life, they don’t have any present capacity as legal parents. Were I incapcitated they couldn’t make decisions for me–even if I were still a child. Were I to die without a will, they couldn’t inherit from me. They had legal status as my parents right up until each of them died, but once they were dead no one holds that status. (This makes me a legal orphan, a situtation which I often contemplate.)

      I think this is one of those spots where it is important to think about the law and the rest of life separately. I don’t know what it would mean–as a matter of law–to say a person who was dead was someone’s parent. I do think it would make more sense, perhaps, to define the circumstances under which a posthumous child could inherit in the same way children born during a person’s lifetime could inherit. That’s a question we could consider and perhaps answer. I worry that rolling that question inot the general “is this person a parent” question doesn’t encourage careful thinking.

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