A Matter of Life And Death: Posthumous Conception

AuthorBrianne M. Star
Pages613-641

Page 613

The author thanks Professor Lucy S. McGough for her invaluable assistance and guidance in writing this comment.

Introduction

Posthumous birth has long been recognized by both the common and civil law and occurs when a husband dies after the conception of a child, but before its birth. Due to the long-established presumption that a child born to a mother within three hundred days of her husband's death is the legitimate child of the husband,1 a posthumous child is legally and socially recognized as the offspring of the father and receives the benefits flowing from that recognition.

Recent scientific developments challenge the conventional presumption by demonstrating that procreation may occur after death. Through artificial insemination, individuals may store their gametes for future use, thus prolonging their reproductive capabilities beyond life. The use of artificial insemination to reproduce after the death of one or both of the parents is often called "posthumous conception."2 Posthumous conception challenges the validity of paternity and inheritance laws by blurring the once bright lines between death and life.

Posthumous conception is a phenomenon the law has largely ignored and one that illustrates the necessity of a legal system that is not only reactionary, but progressive as well. The majority of states' statutes continue to implicitly deny posthumously conceived children legal status and inheritance rights by utilizing conventional filiation and inheritance laws that never contemplated this medical development. Faced with outdated legislation, some courts have found the statutes obsolete and inapplicable to the children's situation.3 Other states, possibly fearing the disruption of estates as Page 614 well as other problems that posthumously conceived children bring to the law, expressly prohibit granting a posthumously conceived child any right to inherit from its father. The constitutional validity of strict prohibitions against inheritance or legal status is highly questionable.4 To avoid the inconsistent case-by-case determinations of courts, constitutional scrutiny, and antiquation, legislatures should address the need for changes in the law created by posthumously conceived children and create a means by which they may achieve legal status.

Until 2001, Louisiana was among those states that denied posthumously conceived children inheritance rights or legal status.5However, during the 2001 Regular Session, the Louisiana Legislature passed a statute granting posthumously conceived children inheritance rights when certain criteria are satisfied.6 In doing so, Louisiana became the first state to develop a mechanism by which most posthumously conceived children will attain legal status and inheritance rights while also effectively balancing various competing interests. By recognizing inheritance rights for posthumously conceived children, Louisiana has acknowledged that the law can adapt to changes in medical technology and that modern families are formed in a variety of ways. Moreover, by balancing the state's interest with those of the child and the decedent, Louisiana's legislation is a model for other states struggling to effectively legislate on the matter. Nonetheless, Louisiana's legislation, though an important beginning, may be improved.

Part I of this comment examines the problems that arise in both common law states and Louisiana when the legal rights of a posthumously conceived child are analyzed under traditional inheritance laws. Part II describes the Louisiana legislation granting legal status to posthumously conceived children. In Part III, the unique clash of competing interests caused by posthumous conception is examined. Part IV compares Louisiana's legislation with the jurisprudence and legislation of other states. Finally, Part V addresses the problems with Louisiana's legislation and suggests some potential reforms.

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I Problems Of Paternity And Inheritance

Conventional filiation and inheritance laws deny a posthumously conceived child legal status as the child of its biological father. The result is not often intentional, but occurs because the law did not consider the possibility of a medical phenomenon such as posthumous conception. Although it may be possible for a posthumously conceived child to inherit a mortis causa donation from its father in common law states,7 the child is nonetheless denied intestate inheritance and other benefits. Similarly, Louisiana's succession laws prevent a posthumously conceived child from receiving intestate or testate inheritance by denying it the capacity to inherit.8

A The Posthumously Conceived Child is Not a "Child"

The posthumously conceived child's difficulty in attaining legal recognition is a result of traditional laws that do not contemplate the possibility of posthumous conception.9 Children are classified as either legitimate or illegitimate.10 Legitimate children are conceived or born during marriage or have been legitimated.11 By definition, posthumously conceived children are not legitimate because they are neither born nor conceived during marriage, nor can they be legitimated by a deceased parent. A presumption of paternity is provided to a child born less than 300 days after its mother's husband's death.12 Because of the difficulty of successfully implanting and giving birth within the presumptive period, a child conceived after its father's death will not be protected by such a presumption.13

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Illegitimate children are neither born nor conceived during marriage.14 Because posthumously conceived children are born after the death of a parent and thus outside marriage, many commentators refer to them as illegitimate.15 However, although illegitimate children are protected by the law and provided a means by which they may assert their paternity, posthumously conceived children are not. Louisiana provides two methods by which illegitimate children can assert paternity: formal acknowledgment by the parent16 or a paternity action filed within one year of the parent's death.17 These protections fail to provide an effective means by which a posthumously conceived child can assert paternity. A deceased father cannot acknowledge his child nor is the child likely to be born in time to assert a paternity action.

The law provides two methods by which illegitimate children can assert paternity: the presumptions of paternity or an action within one year of the decedent's death.18 However, these protections fail to provide an effective method by which a posthumously conceived child can assert paternity, as a child conceived after the death of its father is unlikely to be born within the presumptive period, nor in time to assert a paternity action.19

Thus, posthumously conceived children are denied rights given all other children because they cannot be classified as either legitimate or illegitimate under the laws of intestacy. Posthumously conceived children are therefore not considered "children" under current legal schemes.

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B Legal Status to Inherit

Traditional filiation and inheritance laws deny posthumously conceived children legal status as the children of their biological fathers. In common law states, a posthumously conceived child may inherit pursuant to its father's testament but is denied intestate inheritance and other benefits. Louisiana altogether denies a posthumously conceived child legal status as the child of its deceased father, thus prohibiting the child from inheriting either through testacy or intestacy.

1. Testate Inheritance

Generally, courts do not interfere with a testator's intent and will enforce testamentary dispositions unless they are contrary to public policy or law.20 Thus, if a posthumously conceived child was a named beneficiary in its deceased parent's will, that child should be permitted to inherit pursuant to the will. Where omitted from a parent's will, posthumously conceived children may find relief in common law states with pretermission statutes.21 Pretermission statutes are designed to protect a child who has been left out of a parent's will, often because the decedent failed to amend the will after the birth of a child.22 It is presumed the omission was inadvertent rather than intentional, and the pretermission statutes correct this dilemma by providing for the omitted child.23 Although the statutes contemplate a child born during the lifetime of its father, it may also be reasonable to presume that the testator would want to provide for his posthumous child, and analogously, to his posthumously conceived child.24 In addition, that a testator had his sperm preserved could be viewed as an indication of intent and awareness of the possibility that a child will be posthumously conceived.25 Under the pretermission statutes, a court may...

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