Posthumous Procreation

By Rebekah Page-Gourley posted 06-17-2019 08:00


Last year I wrote about the emerging tort of “reproductive negligence,” designed to compensate plaintiffs for destruction of frozen embryos, ineffective vasectomies, and other acts that rob them of their “ability to determine the conditions under which to procreate.”  But the tort realm is hardly the only legal area where assisted reproductive technology issues arise.

Consider a recent New York case in which the judge allowed parents to retrieve their unmarried 21-year-old deceased son’s sperm. The judge later ruled that the parents could use the sperm for reproductive purposes. While the deceased had not provided written consent before his death, his parents and one of his West Point supervising officers testified as to his plans to have kids (in life). The court also found the deceased’s organ donor status persuasive. Ultimately, the judge inferred consent and ruled that allowing the parents to use their son’s sperm for posthumous procreation “would not do violence to his memory.”

I was surprised to learn that this ruling is not without precedent. Iowa and Texas courts have allowed parties to pursue posthumous reproduction under similar circumstances, while some countries (like Germany and France) ban the practice completely, and some countries (like Ireland) have laws allowing it only under certain circumstances. The American Society for Reproductive Medicine’s 2018 ethics opinion states that posthumous collection of gametes [reproductive cells] is “justifiable” if authorized in writing by the deceased, but notes that programs are not “ethically obligated to participate.” Clearly, posthumous procreation raises some fascinating as well as emotional medical, legal, and ethical issues, including “the ownership of gametes, the inheritance rights and benefits of posthumously conceived children, and the social construction of families.”

Here in Michigan, the Supreme Court held in 2012 that twins who were not alive or in gestation when the father died could not inherit from him, and that the twins were not his “children” under intestacy laws, as they were not “natural issue of both spouses if born or conceived during marriage” as required by MCL 700.2114(1)(a). The SBM’s Probate and Estate Planning Section has worked on legislation that would add, among other provisions, a four-year limitation period for posthumously conceived children of decedents, but so far it has not gained traction. It will be interesting to watch these laws as they continue to develop in Michigan and across the country.