Reimagining Postmortem Conception

• Publication year: 2021

Reimagining Postmortem Conception

Kristine Knaplund
Pepperdine University, kris.knaplund@pepperdine.edu

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REIMAGINING POSTMORTEM CONCEPTION

Kristine S. Knaplund^*

Abstract

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one's gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents.

And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception—a New York amendment effective in February 2021—the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive.

This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.

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CONTENTS

Introduction.................................................................................907

I. The Current State of Affairs: Demand for Postmortem Conception and the Law in Fifty States.....910

A. How Much Reproductive Material Is Now Stored?............912

1. Sperm Banking..............................................................912
2. Cryopreserved Embryos...............................................914
3. Cryopreserved Ova.......................................................918

B. A Second Data Point: The Increasing Demand for Retrieval of Sperm or Ova from the Recently Deceased or Those in a Persistent Vegetative State..................................................919
C. Current Legal Climate in All Fifty States...........................920

1. Addressing Orderly Administration of Estates.............921
2. A Myriad of Ways to Establish the Decedent's Consent...........................................................................................928
3. States Without Statutes on PMC Children....................930

II. Five Reasons the Law Does Not Match Public Sentiment on Postmortem Conception..............................935

A. Stringent Statutory Requirements Make Compliance Difficult .............................................................................................936
B. Few States Define When "Conception" Occurs.................938
C. Hospital Standards for Postmortem Gamete Retrieval Are out of Sync with Legal Standards.............................................. 940
D. All but One Statute Requires a Genetic Connection to the PMC Child .......................................................................... 943
E. The Variety of Definitions of "Consent" and Differences in Legal Formalities Mean That One State's Writing Is Unlikely to Be Accepted in Another .................................................. 945

III. Solutions................................................................................949

Conclusion...................................................................................954

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Introduction

Postmortem conception¹ —the implantation of an embryo months or years after one (or both) of its parents has died—has now resulted in hundreds of children being born in the united States. Thousands of adults have stored their reproductive material for their own later use to potentially create more embryos for later implantation. Americans generally favor the idea of a partner using a loved one's sperm or eggs after death.² In 2013, a random survey of 857 adults concluded that 76% thought that postmortem conception (PMC) should be allowed if the deceased were married at death, while 66% would approve of it for an unmarried decedent.³ Respondents were even more likely to be supportive if the decedent had consented in writing, with 81% in favor.⁴ Two surveys in 2012 and 2013 found wide support for a partner retrieving sperm or ova from a recently deceased partner to have a PMC child.⁵ Brigham and Women's Hospital commissioned an online survey of attitudes towards PMC after fielding one or two such requests a year; their 2012 survey of 1,049 U.S. adults found that close to 50% of respondents thought a person should be able to retrieve gametes from a dead or dying partner, most of whom conditioned the request on the decedent's written consent.⁶ A random survey of 846 adults published in 2013found even greater acceptance of postmortem sperm retrieval—especially if the decedent was married at death—with 67% of respondents in favor if the couple was married and 51% in favor if

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the couple was cohabiting.⁷ Respondents were more likely to be supportive of PMC if the decedent's wishes were known, with 74% in favor regardless of whether the wishes were written or verbal; even if the decedent's wishes were unknown, however, 55% would still support the request for postmortem retrieval.⁸ In another anonymous survey of 106 couples undergoing fertility treatments, 78% supported retrieving sperm or ova after death.⁹

Uniform and model acts have gradually progressed to reflect this acceptance of PMC. The 1988 Uniform Status of Children of Assisted Conception Act (USCACA) barred PMC children from inheriting "to avoid the problems of intestate succession which could arise."¹⁰ Only two states, North Dakota and Virginia, initially adopted the provision, but both have now replaced it.¹¹ In 2000, the Uniform Parentage Act proposed that a spouse who consented in writing would be a parent of a PMC child; in 2002, "spouse" was changed to "individual."¹² Finally in 2008, the Uniform Probate Code provided for PMC children in both intestacy and class gifts if the decedent intended to be treated as a parent, which could be shown by a signed record or by clear and convincing evidence.¹³ A person who died married, with no divorce proceedings pending, was presumed to have consented.¹⁴ Thus, in twenty years, the model acts went from a presumption that no PMC child would inherit in the 1988 USCACA

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to a presumption that all PMC children of a married decedent would inherit in the 2008 Uniform Probate Code, a position that better reflects current public opinion.

Legislatures in twenty-four states have responded by answering the difficult question of whether these PMC children can inherit from their predeceased parent, with twenty-three statutes allowing the child to inherit if certain conditions are met.¹⁵ Courts in another five states with no current statute governing PMC inheritance have looked at intestacy laws to ascertain if these laws, created at a time when assisted reproductive technology did not exist, include PMC offspring.¹⁶

And yet, even though we have been wrestling with this issue for decades, the problem is by no means solved.¹⁷ State statutes, which often impose rigid requirements, are out of step with public sentiment that PMC children should inherit.¹⁸ Questions arise in attempting to define when "conception" occurs if a couple uses in vitro fertilization (IVF) while both are alive but implants the embryo in a woman's womb after one parent has died. All but one of the state statutes raise obstacles in consenting to be a parent of a PMC child for both those who are infertile and for lesbian and gay couples.¹⁹ The few hospital protocols that have been adopted for obtaining sperm or ova postmortem do not necessarily comport with the legal standards in their states.²⁰ Perhaps most importantly, in a mobile society where a person may live in one state, undergo costly assisted reproductive techniques in a second state, and die as a domiciliary in a third state, the plethora of state-mandated consent procedures and formalities

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mean that a document executed according to one state's requirements is unlikely to be accepted in another.²¹

This Article proceeds as follows. Part I describes the current state of affairs by first examining how much reproductive material is now stored and how much is obtained postmortem to determine the likelihood that the number of PMc children will continue to expand. Part I also provides a fifty-state overview of whether a PMC child will be considered "issue" of the predeceased parent and thus inherit from them. Part II examines in detail the many reasons this fifty-state approach is unsatisfactory, such as requiring a PMc child to jump through numerous hoops in short time periods, failing to define when "conception" occurs, and omitting those who need a third person's sperm or ova to reproduce. Part III proposes solutions to the twenty-six states yet to enact legislation and proposes amendments for the states that have.

I. The Current State of Affairs: Demand for Postmortem Conception and the Law in Fifty States

In hundreds of cases, gametes retrieved either pre- or postmortem have resulted in babies being born years after the genetic parent's death,²² which has been detailed in newspaper accounts,²³ law review articles,²⁴ and requests for survivors' benefits from Social Security.

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From 1993 to 2015, cases in Arkansas,²⁵ Arizona,²⁶ California,²⁷ Florida,²⁸ Iowa,²⁹ Louisiana,³⁰ Massachusetts,³¹ Michigan,³² Nebraska,³³ New Hampshire,³⁴ New Jersey,³⁵ New York,³⁶ Pennsylvania,³⁷ Utah,³⁸ and Virginia,³⁹ all explored the question of whether a PMC was entitled to inherit. The Social Security Administration declared in 2011 that it...