Sorry I’ve been away for so long–life intervened. But I know discussion has continued, and I’m grateful to those who carry on without me. Anyway, I’m back and getting started again.
I’ve written in the past about legal issues that arise when children are conceived after the death of the person who provides the genetic material necessary for conception. Typically this happens when sperm has been frozen (which would generally only happen with the consent of the provider) or harvested after death (this sometimes happens without the consent of the provider). You can read about a selection of cases and approaches if you follow the link above.
So here’s another iteration of the same basic story. (My thanks to Spin Doctor for leading me to this.) Melissa Amen conceived her daughter, Kayah, seven days after the death of her husband, Joshua. The couple had been trying to conceive when he died and since he had cancer, Joshua had some of his sperm frozen. I think the implication here is that it was frozen so that it would be available for use in the event treatment left him sterile. It’s not as clear (to me anyway) that there was also a plan that she would use the sperm in the event he died.
Cases like this can raise a number of questions. Should the use of sperm be permitted after the death of the man who provided it? Maybe that depends on the specific circumstances–perhaps the answer is only if he specifically agreed to this? Perhaps, if you think DNA is the sine qua non of parenthood, it should never be allowed, because it will necessarily result in a fatherless child? (There are many assumptions packed into that and it isn’t what I think, but it is certainly a plausible way of thinking about it.)
Apart from questions of permissibility, there are what I think of as collateral questions. If you do this and a child results, is the child the heir fo the deceased? And the question raised here–which you could understand as a related question–should the resulting child be eligible for the Social Security benefits the child of a deceased parent receives via that parents Social Security account?
Before thinking about this I should note that if the wife is pregnant when the man dies (and I think it matters not whether she got pregnant via ART or pregnant via intercourse) then I think the answer to these questions is fairly clear. It is as if the child were born during the man’s lifetime. This means that she or he can inherit and receive social security just as any child born before the man’s death would.
The first question (Could the child be an heir?) is actually a bit misleading. If the child were named in the will it seems to me the child could inherit. (I’m not a trusts and estates person, but I think a competent lawyer could figure out how to arrange that.) The question probably should be whether the child would inherit in the absence of a will–which is to say, via intestacy.
It has occurred to me that there are ways to think about these questions other than what I’ve done here before. I think I’ve tended to focus on the “is the man a father” question. But a different approach would be to think about why the law operates the way it does in the first place. Why does a child born before the husband’s death relieve social security benefits? Why does that child inherit via intestacy?
I cannot say whether this will turn out to be a useful inquiry. Perhaps it just will circle us back to the “is he a father” question. Maybe it takes us to other questions that aren’t useful–things like why intestacy is structured as it is. (I think that is because it is supposed to accomplish what people would have wanted had the gotten around to writing a will.) If that’s the case, then it seems to me it would only make sense to include children that the man planned to create. In cases where the sperm was harvested after death, it makes little sense to say he would have included it in his well.
If you follow this line of thought, social security is perhaps a little different. It might be that the benefit is understood as a substitute for support that the husband had been providing. But since it is tied to income, you might also think of it as something he earned and is entitled to direct.
The problems lurking out here are the ones we have talked about before. There’s a potential for dozens of children created years after his death. That time line along poses new problems. But it might be worth a few minutes to think some of this through from a different direction.