I’ve written a number of times about the problems presented by children conceived after the death of a man who provides sperm used to create the child. If you go read those posts you’ll see that in general I’ve been thinking about children conceived via sperm that was frozen before a man died (or in a few cases, harvested just after his death.) The main issue I’ve written about has been entitlement to Social Security benefits. The Supreme Court has agreed to review one of these cases and so we’ll have an interesting opinion to digest before the end of the Court’s term.
There’s a recent article in US News & World Reports that discusses some of these questions, but as the article makes clear, the ones involving frozen sperm are really a subset of a larger set of perplexing cases. If you freeze sperm a child may be conceived after the death of the man who provided the sperm. It’s also possible now to freeze eggs, so you could get the same problem there.
But we all know that there are thousands of frozen embryos around as well. Suppose embryos are created during a person’s lifetime, but then frozen for later use. Imagine that the person who provided the gametes then dies. A child from those embryos is not a posthumously conceived child. (Conception occurs when the sperm fertilizes the egg leading to the creation of an embryo.) Nevertheless, I think cases involving embryos that were frozen at the time of the death of the person who provided the gametes are essentially the same as the frozen gamete cases. I just don’t have a very good descriptive name for these children.
The US News article is focussed on problems of estate planning and inheritance, and these are obviously going to arise. The thing to remember here–and what really (to my mind) can make this hard–is that eggs/sperm/embryos can be frozen for a long time. A child could be born ten months after the death of the gamete provider or potentially ten years. There’s a big difference here, particularly if you think of the estate problems.
Suppose a person dies and leaves their estate to be divded equally among their children. How long do we need to wait to see how many children there are? To say that the estate must be frozen (sorry about that) for as long as a child might potentially be created is wildly impractical.
What that article tells us is that some people have agreed on an (arbitrary) cut off point of 45 months (That’s the model probate code, which has not been widely adopted.) I do wonder about where that span of time comes from. Five times the normal span of a pregnancy? (It’s hard to see why you’d use that as a metric, but what else might 45 relate to?)
And this is the problem for people who write wills–generally not the majority of the population. For those with no wills, state intestacy statutes will control. It’s uncertainy here that is relevant to the Social Security questions.
So all of this is just a reminder of the host of legal issues created by ART. I’m inclined to agree that there has to be a bright line–a time after which the kids cannot count. Figuring out where that line goes is always arbitrary, really. But at least we could have some settled law.