Third Place Winner 2004

The Impact of Modern Reproductive Technology on the Law of Probate: “Frozen Pops” and Inheritance

Cheri L. Riedel
Memphis, Tennessee

Imagine this: you are a young, happily married man and ready to start a family with your wife. Then imagine you get devastating news – you have cancer. You have a bleak prognosis in which the doctors only give you a year or two to live. But you want to have children. You want a son to “carry on the family name” but the treatment prescribed for you is chemotherapy, which will most likely leave you sterile even if you survive the cancer. What do you do? Many men in this situation have “banked” their sperm; that is, they have made single to multiple deposits of sperm at a cryopreservation facility to enable them to father children in the event that they survive and are sterile or if, unfortunately, they do not survive. Even if he is to perish, his dream of having children can still live on posthumously thanks to modern reproductive technology.
Part I of this paper defines and discusses the issues surrounding modern reproductive technology and the law of probate. Part II discusses the treatment of sperm as probate property both in some U.S. states and abroad in foreign countries. Part III discusses the author’s proposal for the treatment of sperm as probate property via a statutory scheme.
Sperm cryopreservation makes it possible for a terminally ill man to conceive children even after treatment for such illness leaves him sterile or he dies. Cr yopreserved sperm should be considered probate property in the event of the donor’s death. Furthermore, a posthumously conceived and born child should be considered a child of that cryopreserved sperm donor for inheritance purposes.
In this section of the paper, the author will discuss the biological terms and processes associated with sperm cryopreservation, the issues surrounding cryopreserved sperm usage in the event of the donor’s death, and the status of cryopreserved sperm under the law.
A. The Threshold Issues
What is to be done with cryopreserved sperm after the donor dies? If that sperm is used to conceive a child and that child is born, how should that posthumously conceived and born child be treated for inheritance purposes?
B. Sperm Cryopreservation
Sperm cryopreservation is the process of freezing a man’s semen for use in the future. This process, sometimes referred to as “sperm banking,” begins with a sample that is analyzed for viability. After its determination as a viable sample, it is then mixed with a cryoprotectant and placed in a liquid nitrogen tank where it will be stored at a continuous temperature of -325 ° F. Storage at this temperature assures that the sperm can remain viable for an indefinite period of time.[1]
C. The Right to Procreate
The right to procreate has long been recognized as a personal choice in which the state lacks interest.[2] Where it is possible to avoid parenthood even after conception, the party who wishes not to become a parent has been the one respected as the prevailing interest.[3] No one can ever be forced to become a parent.[4] However, the state may have an interest when that person desires to become a parent after his death.[5]
D. Distinction in Terms
It is important to note a relevant distinction among reproductive cells because many state statutes call for different outcomes based on the differences among these cells. Gametes are sex cells such as eggs and sperm.[6] A zygote is the cell or group of cells resulting from the meeting of a sperm cell and an egg cell and is commonly known as a fertilized egg.[7] The moment that the gamete sperm cell and the gamete egg cell fuse together is considered conception.[8] An embryo, however, is “the stage of development of developing offspring where they are born and able to survive in the open world.”[9] An embryo, therefore, is more developed than a gamete/sperm cell or a zygote/fertilized egg cell.[10]
E. Sperm: Property or . . . What?
Sperm is a bodily fluid. For this reason, there is debate as to how cryopreserved sperm should be treated after the death of the donor. If sperm is considered part of the body, then it should “die” with the donor and use of the sperm for procreative purposes should be prohibited. If sperm is something distinct and separate from the body, then the bearer of property rights in the sperm must be determined at the donor’s death.
The leading case addressing the issue of reproductive cell legal status is Davis v. Davis , 842 S.W.2d 588 ( Tenn. 1992). All subsequent cases discussing property rights in reproductive cells have considered the Davis court’s analysis. In Davis, the parties, formerly husband and wife, each sought control of seven cryopreserved embryos created during the marriage; the man to destroy, the woman to donate them to a childless couple. Before attempting to resolve the dispute, the court saw a need to classify the status of the embryos under the law. The court held that “(pre)embryos are not, strictly speaking, either ‘persons’ or ‘property,’ but occupy an interim category that entitles them to special respect because of their potential for human life.”[11] Furthermore, the court held that neither of the parties had a true property interest in the embryos.
The court in Hecht v. Super. Ct., 20 Cal. Rptr. 2d 275 (Cal. Ct. App. 1993) (“Hecht I”)[12] was the first U.S. court to confront the issue of property rights in cryopreserved sperm. In Hecht I, the deceased man’s partner, Deborah Hecht, sought control of vials of the decedent’s sperm he had deposited at a sperm bank, for the purpose of conceiving a child. The decedent’s adult children sought control of the sperm vials to destroy them. In determining the legal status of the sperm vials, the court considered the Davis decision and concluded that “at the time of his death, decedent had an interest, in the nature of ownership, to the extent that he had decision making authority as to the sperm within the scope of policy set by law.”[13] The court made this determination based on the facts that the decedent had made a positive effort to bank his sperm prior to his death and sought to demonstrate his purpose in doing so by executing a will appointing Hecht as the executor, bequeathing his cryopreserved sperm to Hecht in his will in both her capacity as his appointed executor and as his partner at the time of his death, and drafting the “Statement of Wishes” decedent referenced in his will.[14] Thus, the decedent’s interest in the sperm vials amounted to a personal property interest and the vials could be considered devisable probate property.[15]
In another round of the Hecht case (“Hecht II”), the court stated that “the genetic material involved here is a unique form of ‘property’,”[16] recognizing the non-traditional nature of sperm as property while simultaneously recognizing the need for its distribution/disposal. The court held that the testamentary intent of the donor/testator must be carried out, therefore decedent’s surviving partner should take title to the sperm under the terms of the decedent’s will.[17]
It is consistent for the Davis court to find a quasi-property interest in an embryo and the Hecht court(s) to find a personal property interest in cryopreserved sperm. A sperm/gamete cell has the potential for creating life but a (pre)embryo has a greater potential for creating life because it is already joined with the other essential part needed for creating life – the egg/other gamete cell. It is fair to say that there can be a property interest in a gamete cell because it is still uniquely the donor’s cell. A (pre)embryo, on the other hand, is not merely the gamete cell of one person but it is the product of the gamete cell of a male joined with the gamete cell of a female. Once created, a (pre)embryo has its own new “identity” while a single gamete cell has the same “identity” of its donor. A (pre)embryo, because it has a new “identity” all its own, should be afforded some degree of independence and therefore should not be under the control or be considered the property of another. Simply put, as the potential for independent life increases, the degree of control by another should decrease.
This part of the paper focuses on the distribution of cryopreserved sperm when considered property – furthermore, as probate property devisable by will or disposed of through intestate succession. The following discussion first analyzes testate distribution and some states’ treatment of sperm as probate property; second, the discussion turns to other countries’ treatment of sperm as probate property; third, the discussion focuses on the rights of children conceived thanks to sperm cryopreservation; fourth, the discussion concludes with an analysis of the concerns associated with keeping an estate open for the mere possibility of a child’s birth.
A. Sperm as Probate Property: How to Distribute It
i. Testate
If a man dies testate and his will disposes of his cryopreserved sperm, the courts are under an obligation to carry out his testamentary intent. In Hecht II,[18] Hecht cited Kane’s will as one of the reasons for which she was entitled to Kane’s cryopreserved sperm. Kane’s will provided “I bequeath all right, title, and interest that I may have in any specimens of my sperm stored with any sperm bank or similar facility for storage to Deborah Ellen Hecht.”[19] The court agreed with Hecht and because of the devise in Kane’s will along with other evidence, Hecht obtained control over the sperm vials.
ii. Intestate
Most often in these situations, however, the man who cryopreserves his sperm and later dies usually dies without a will and therefore leaves no specific statement of intent as to the disposition of his cryopreserved sperm. Other times, the man may execute a will but the will fails to include a statement of his wishes as to the disposition of the cryopreserved sperm; put simply, the man dies intestate as to the disposition of his cryopreserved sperm. In cases such as these, other statements of intent made prior to death have been considered by the courts in deciding how to dispose of the decedent’s sperm.
In Hall v. Fertility Institute of New Orleans, 647 So.2d 1348 (La. Ct. App. 1994), the deceased man’s mother/executrix sought to prevent his surviving partner from obtaining ownership of her deceased son’s cryopreserved sperm. While the decedent died testate, his will was silent as to the disposition of his cryopreserved sperm; therefore, the decedent died intestate as to the disposition of the cryopreserved sperm. The decedent’s surviving partner, however, brought forth evidence of an “Act of Donation”[20] signed by the decedent which purported to convey his interest in the cryopreserved sperm to his partner. The court held that it was reasonable for the trial court to conclude that the executrix had presented a prima facie case that the Act of Donation was invalid. The court then qualified its decision holding that the Act of Donation would not be considered invalid because of it’s presumed function as disposing of the cryopreserved sperm; if it were to be determined to be invalid, it would be because a question existed as to the decedent’s mental capacity at the time he executed the Act of Donation.[21] It follows that such a non-testamentary document as an “Act of Donation” could be used to dispose of cryopreserved sperm where a will does not dispose of the sperm.
The Hecht II court also considered the weight of a non-testamentary document’s purported function as disposing of cryopreserved sperm. In addition to a testamentary disposition of his cryopreserved sperm in his will, William Kane also signed a donation consent form at the cryopreservation facility at the time of his deposit, attached a “Statement of Wishes” to his will which spoke directly to the disposition of the cryopreserved sperm, and also drafted a letter addressed “To my children . . . ” and mentioned specifically the possibility that such phrase could include children born from his cryopreserved sperm.[22]
The donation form Kane signed at the cryopreservation facility directed that the sperm he was depositing be released to Hecht or her gynecologist and no other and that upon his death, that the sperm be turned over to the executor of his estate.[23] Coincidentally, the executor named in his will was Hecht, although she was not appointed executor by the court.
In the “Statement of Wishes” attached to his will, Kane further declared his intention for Hecht to take control of his cryopreserved sperm either before or after his death. If Hecht did decide to bear a child with Kane as the father after his death, Kane directed that his diplomas and framed mementoes be preserved in his estate for the posthumously conceived child. The Hecht II court held that all of these documents considered together - the will, consent form, “Statement of Wishes”, and letter “To my children . . . ” - more than adequately demonstrated Kane’s intent that Hecht take control of his cryopreserved sperm after his death for the purpose of bearing his child.[24]
It is the author’s opinion that both the Hecht and Hall cases were decided properly. Cryopreserved sperm should be treated as probate property with the ability to be devised by will and used to create a child posthumously. The cryopreserved sperm should only be allowed to pass through probate, however, if the donor’s intent can be ascertained without serious doubt; in the absence of clear intent, the cryopreserved sperm should be destroyed.
B. How Other Countries Have Broached The Issue
The United States is not the only country that has made advancements in reproductive technology. Consequently, other countries have been forced to deal with the issue of disposition of cryopreserved sperm.
The case of “Mrs. U” brought the issue to the forefront for the United Kingdom (“ UK”) in 2002. Mrs. U, a 34-year-old widow, sought control of her deceased husband’s sperm that he had deposited in a Bristol, England fertility clinic prior to his death.[25] The court framed its analysis as “whether the [fertility clinic] had ‘an effective consent for the continued storage and later use of these sperm’.” The fertility clinic alleged that Mr. U, who died unexpectedly from an asthma attack in 2001, had withdrawn his consent to allow Mrs. U to obtain control of the cryopreserved sperm in the event of his death. Mrs. U, however, alleged that the withdrawal was made under duress from a member of the medical profession. The court decided that the clinic should destroy the cryopreserved sperm.[26] The court did not consider the authenticity of the revocation of consent but did give great weight to the fact that doubt as to the donor’s intent had been presented. Where there was doubt as to the intent of the donor, the court decided against allowing the cryopreserved sperm to be used to create a child, thus reinforcing the policy that gamete donors cannot be forced to become parents. Furthermore, the UK has an extensive statutory scheme to regulate the use of cryopreserved gametes and embryos.[27]
France has also been forced to deal with these issues. In Parpalaix v. CECOS , a case regarded highly internationally,[28] Corinne Parpalaix, a widow, sought control of her deceased husband’s cryopreserved sperm for the purpose of bearing his child. Alain Parpalaix, the decedent, made a deposit of his sperm at CECOS, a government-run sperm bank, prior to his death. After his death, Corinne requested the sperm but CECOS refused because Alain did not leave any instruction as to its disposition in the event of his death.[29] The French court ordered that the cryopreserved sperm be handed over to Corrine. The court based its decision on the theory that Alain’s deposit of his sperm was in the nature of a bailment[30] of personal property and therefore CECOS’ refusal to disperse the personal property to his widow was a violation of that bailment.
The UK and France are not the only ones to have confronted the issue of posthumous conception. Posthumous conception is prohibited in Germany, Sweden, Canada, and the state of Victoria, Australia.[31] In Israel, a widow can use embryos within one year of her husband’s death, but a widower is prohibited from ever using cryopreserved embryos in a woman other than the egg donor. The UK allows posthumous conception if the donor demonstrated consent prior to his death. After Parpalaix , France passed a law prohibiting posthumous conception.
C. How U.S. States Have Broached The Issue
As compared to the foreign countries discussed supra, the United States is far less attuned to the impact of modern reproductive technology on the law of probate. Not many states have addressed the issues either statutorily or in the courts.
As the starting point that most uniform laws are, the Uniform Parentage Act (“UPA”), Section 707, entitled “Parental Status of Deceased Individual” seeks to dispose of the issues surrounding posthumously conceived children. Section 707 states:
If an individual who consented in a record to be a parent by assisted reproduction dies before placement of...sperm...the deceased individual is not a parent of the resulting child unless the deceased [individual] consented in a record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child.[32]
The UPA then, permits a man to be considered the “father” of a child that is conceived with his frozen sperm after his death – provided that he had explicitly stated his intent to become a father via his cryopreserved sperm prior to his death. According to the official comments to § 707, the drafters were seeking to avoid the problems of intestate succession that may arise with posthumous conception.[33] Only Texas and Washington have codified the UPA, however, and it has only been considered for adoption in Minnesota and West Virginia.[34]
The state of Florida has created a very comprehensive statute to deal with the issue of disposition of cryopreserved sperm. Fla. Stat. § 742.17 (West 2003), entitled “Disposition of eggs, sperm, or preembryos; rights of inheritance,” mandates that a couple seeking to cryopreserve gametes must enter into a contract with the treating doctor that provides for the disposition of such gametes in the event of divorce or death.[35] Furthermore, if there is no written agreement and one of the members of the couple dies, the statute mandates that the deceased member’s gametes be under the control of the surviving member.[36]
Currently, only a handful of other states have addressed the impact of modern reproductive technology on the law of probate.[37] The construction and application of these states’ statutes often hinges on whether the statute regulates the use of cryopreserved gametes or cryopreserved embryos.[38]
Louisiana ’s civil code states that in order for a child to inherit a gift causa mortis,[39] the child must be in utero[40] at the time of death of the testator.[41] Therefore, a posthumously conceived child is prohibited from inheriting from his deceased gamete donor because he cannot be in utero if he is not yet conceived at the time of the gamete donor’s death.[42]
Virginia does not permit the parentage of a posthumously implanted “embryo” unless the person consents, in writing, to be a parent to that posthumously born child prior to his death.[43]
In Florida, if a child should be posthumously conceived from a deceased donor’s gametes, then that child “will not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.”[44]
But some states have left the door open for men who desire to father children after their death. Some states refer to “conception” as the critical point at which inheritance rights are determined.
In North Dakota, a man who cryopreserves his sperm prior to his death cannot become a father posthumously. North Dakota does not permit a person who dies before the “conception” of a child to be considered the parent of that posthumously conceived child.[45] Furthermore, North Dakota law dictates that a posthumously conceived child cannot inherit through intestate succession, cannot inherit probate law exemptions, allowances, or other protections for children in a parent’s estate, nor can the child inherit through his deceased parent.[46]
Idaho , Maine, and New Jersey also focus on conception. These states’ identical statutes dictate that relatives of the decedent conceived before death, but born after, inherit as if they had been born during the decedent’s lifetime.[47]
Wyoming also has a similar law. WYO. STAT. ANN. § 2-4-103 (2003) states that “persons conceived before the decedent’s death,” but born after, inherit as if they were born while the decedent was alive.[48]
“Conception,”[49] therefore, is a loophole. If a man who is terminally ill desires to become a father after his death, he can still do so in North Dakota, Idaho, Maine, and New Jersey if he and his partner can see to it that his sperm meets her egg to create a zygote prior to his death. Even if that zygote is cryopreserved and his surviving partner does not choose to implant the zygote until after his death, the resulting posthumously born child can still inherit from his deceased father because he was “conceived” prior to his father’s death.
D. The Posthumously Conceived Child’s Inheritance Rights
“It has always been routine human experience that men sometimes have children after they die. To deal fairly with this reality, decisional law and statutory law have long recognized that it is appropriate to hold the process of identifying takers from a decedent’s estate open long enough to allow after born children to receive property from and through their father.”[50] But does this statement made by the court in In re Estate of Kolacy, 753 A.2d 1257, 1261 (N.J. Super. Ct. Ch. Div. 2000) apply if the child is not yet conceived at the father’s death?
Just as it is possible for a man to dispose of his cryopreserved sperm by will, so too, that man can devise his personal property to the potential child that could be born from that cryopreserved sperm. As William Kane, the decedent in the Hecht case, did with his “Statement of Wishes,” a man who cryopreserves his sperm can direct by will, or some other non-testamentary document incorporated into the will by reference, that parts of the personal property within his estate be held for his potential future child. Practical questions arise of where the property should be stored until that child is born or how to dispose of the property if that child never comes into existence; but nothing, save the Rule Against Perpetuities, can specifically invalidate the donor/testator’s intent.[51]
The inheritance rights of posthumously conceived children have been the primary focus in a line of cases dealing with the right of these children to collect the Social Security benefits of their deceased fathers. In Kolacy, a mother sought a declaration from the court that her twin daughters were the intestate heirs of her deceased husband. Mariantonia Kolacy’s twin daughters were born on November 6, 1996 – eighteen months after the death of their father, William Kolacy. Mariantonia was able to become pregnant with her daughters after her husband’s death thanks to a cryopreserved sperm deposit that her husband had made prior to his death. As many widows and widowers with minor children do after the death of their spouses, Mariantonia sought government assistance on behalf of her daughters by seeking the Social Security benefits to which her husband would have been entitled. The Kolacy twins were initially denied their father’s Social Security benefits because the Social Security Act only allows a child to collect the benefits of his deceased parent if he is entitled to inherit from his deceased parent’s intestate estate[52] and because New Jersey does not recognize a child born more than 300 days (~10 months) after his father’s death to be the intestate heir of his father.[53] Recognizing the gap in the New Jersey laws of intestate succession and a “basic legislative intent to enable children to take property from their parents,”[54] the court held that since it had been established that the Kolacy twins were indeed the offspring of William Kolacy, they were his intestate heirs.[55]
Massachusetts has also taken up the issue of Social Security benefits for posthumously conceived and born children. In Woodward v. Comm’r of Social Security , 760 N.E.2d 257 (Mass. 2002), another widow was seeking the Social Security benefits of her deceased husband on behalf of her posthumously conceived and born twin daughters. While the issues were the same as in Kolacy , the Woodward court set out a criteria to be fulfilled before a child can be considered “issue” under the intestacy laws of Massachusetts:
1) genetic relationship between the child and the decedent
2) the decedent affirmatively consented to the posthumous conception prior to death
3) the decedent affirmatively consented to the support[56] of any resulting child.[57]
The court held that legislative intent advocated the preservation of wealth for consanguineous descendants of a decedent. For this reason and because the term “posthumous children” was not defined in the state’s intestacy statutes, the court held that it was possible for a posthumously conceived and born child to inherit from his deceased father’s estate.[58]
E. Where Will it End?
An aspiration of the American Jurisprudential System is to make decisions that are prompt and final. This goal is often characterized as “judicial economy.” Probate judges frown upon allowing a decedent’s estate to stay open for a lengthy amount of time. Furthermore, allowing estates to stay open for the possibility of the conception and birth of an heir, flies in the face of finality and promptness. If a child-heir is not even to be conceived until some point in the distant future after his presumed father’s death, there would be no way, under most states’ current statutory schemes, to close estates.
As stated by the Kolacy court:
Estates cannot be held open for years simply to allow for the possibility that afterborn children may come into existence. People alive at the time of a decedent’s death who are entitled to receive property from the decedent’s estate are entitled to receive it reasonably promptly.[59]
Some courts and commentators have characterized this issue as “the state’s interest in the orderly administration of estates.”[60] According to the Supreme Judicial Court of Massachusetts, this goal is promoted by the state’s statute in two ways: “(1) by requiring certainty of filiation between the decedent and his issue, and (2) by establishing limitations periods for the commencement of claims against the intestate estate.”[61]
In this section, the author will discuss her proposed statutory scheme to remedy the problems that arise from modern reproductive technology’s impact on the law of probate.[62]
The Proposed Solutions
To resolve the first threshold issue, “what is to be done with cryopreserved sperm after the donor dies?”, the solution proposed by the author would be a statute mandating the following:
All cryopreservation facilities shall require completion of a consent form that asks the following questions:
a) Why are you donating sperm?
b) In the event of your death, do you wish for your cryopreserved sperm to be destroyed?
i. If no, whom do you wish to take control of your cryopreserved sperm at your death?
ii. Why do you wish for that person to take control of your cryopreserved sperm at your death?
iii. Do you wish for your sperm to be used posthumously to conceive a child?
c) Have you expressed these wishes to your family and the person you have named above as the person to take control of your cryopreserved sperm when you die?
d) This consent form shall be executed with the same formality as that of a will found in § 2-502 of the Uniform Probate Code; in the event of a contest, this document shall be scrutinized for undue influence and fraud.
e) This consent form must be executed by the donor in order for the cryopreserved sperm to be turned over to the person named in (b) (ii).[63]
Alternatively, if there is no consent form completed by the donor at the time of deposit, such cryopreserved sperm shall be considered a form of probate personal property. It may then be devised by will or pass via the state laws of intestate succession. When the cryopreserved sperm passes to another, that person must meet the following requirements before being permitted to use such cryopreserved sperm to procreate:
In order for a woman to have a property right in the cryopreserved sperm of a deceased man, she must demonstrate the following:
1. That the deceased donor man had banked the cryopreserved sperm in question for the sole purpose of impregnating the woman and fathering a child with her AND
2. The deceased donor man, while alive, must have openly acknowledged the cryopreserved sperm as having the potential for conceiving his biological child, even posthumously.[64]
If the person claiming a property right to the decedent’s cryopreserved sperm is someone other than the decedent’s partner at the time of his death, the sperm shall be destroyed.
To resolve the second threshold issue, “if that sperm is used to conceive a child and that child is born, how should that posthumously conceived and born child be treated for inheritance purposes?”, the author’s proposed solution is:
A posthumously conceived and born child shall establish all of the following before being considered “issue”:
1. a genetic relationship between he and the decedent
2. decedent affirmatively consented to the posthumous conception that resulted in the child’s birth[65]
3. decedent affirmatively consented to the support[66] of any child posthumously conceived and born from his cryogenically preserved sperm.
After the above are established, the posthumously conceived and born child shall be treated as a pretermitted/afterborn child for inheritance purposes. That child shall thus take a share of his father’s estate according to UNIF. PROBATE CODE § 2-302 (amended 1993). If the estate of the father has already been closed, it shall remain closed and the posthumously conceived and born child’s inheritance rights as a pretermitted/afterborn child shall be terminated.
Statute of Limitations: The biological mother of the posthumously conceived and born child shall only be permitted to establish the child’s inheritance rights under this statutory scheme for a total of three (3) years following the death of the decedent donor.[67] This statute of limitations shall be tolled in the event there is a contest as to the (proposed) biological mother’s property interest in the cryopreserved sperm. The statute shall be tolled until the (proposed) biological mother’s property interest is determined by a competent court of this state.
Jurisdiction: The Probate Division of the court of each county shall have the sole jurisdiction to determine both the nature of the property interests in such cryopreserved sperm and also the inheritance rights of such posthumously conceived and born children.
Modern reproductive technology has indeed “opened a can of worms” when it comes to the conception of children after one of the biological parents has died. States that have not done so need to determine statutorily the legal status of cryopreserved sperm and those children that are posthumously conceived with that sperm.
In balancing the interests of the parties, the (proposed) biological mother, the deceased donor father, and the posthumously conceived and born child, the state should consider the significance that having a child means to some of its citizens. While the state does have weighty interest in the potential commercialization of human body fluids, and even weightier interest in the promptness and finality of judicial proceedings, all of those interests may pale in comparison to the significance of having a child with the person you choose to love.
[1] See Cryobank for Oncologic and Reproductive Donors, Inc. at (link defunct 10-08).
[2] See Griswold v. Connecticut, 381 U.S. 479 (1965).
[3] See Skinner v. Oklahoma, 316 U.S. 535 (1942).
[4] Id.
[5] The Constitutional questions raised by the right to procreate are highly relevant to this debate but will not be addressed in this paper in the interest of brevity.
[6] See The Cell Cycle at (link defunct 10-08).
[10] This paper only addresses the issues relating to cryopreserved sperm as the author believes that it is evident from a deceased man’s consent to the cryopreservation of an embryo created prior to his death, a cell that is beyond the stage of mere conception, that the deceased man had impliedly chosen to become a father prior to death.
[11] Davis v. Davis, 842 S.W.2d 588, 597 ( Tenn. 1992).
[12] The distinction of I and II is one made solely by the author of this paper.
[13] Id. at 281.
[14] See Id.
[15] Id.
[16] Hecht v. Super. Ct., 59 Cal. Rptr. 2d 222, 226 (Cal. Ct. App. 1996).
[17] See Id. at 222.
[18] See Hecht v. Super. Ct., 9 Cal. Rptr. 2d 222 (Cal. Ct. App. 1996).
[19] Id. at 223.
[20] It is unclear from the court’s recitation of the facts whether this “Act of Donation” was a legal document created under the auspices of the Uniform Anatomical Gift Act (1987) or whether it was a legal document used strictly in Louisiana for conveying interests in property.
[21] Hall v. Fertility Institute of New Orleans, 647 So.2d 1348, 1351 (La. Ct. App. 1994).
[22]See Hecht v. Super. Ct., 59 Cal. Rptr. 2d 222, 223-4 (Cal. Ct. App. 1996).
[23] See Id. at 223.
[24] See Id. at 226.
[25] See Widow Loses Fight Over Frozen Sperm at
[26] See Id.
[27] See Human Fertilisation and Embryology Act of 1990 at
[28] Accord Hecht v. Super. Ct., 20 Cal. Rptr. 2d 275, 287, Hecht v. Super. Ct., 59 Cal. Rptr. 2d 222 (Cal. Ct. App. 1996), Davis v. Davis, 842 S.W.2d 588, 597 ( Tenn. 1992).
[29] See Hecht v. Super. Ct., 9 Cal. Rptr. 2d 222, 287 (Cal. Ct. App. 1996).
[30] The court based its analogy to a bailment on the idea that the donor could have recalled the deposit of sperm at any time prior to his death and therefore such right continued in his surviving heirs.
[31] Margaret Ward Scott, A Look at the Rights and Entitlements of Posthumously Conceived Children: No Surefire Way to Tame the Reproductive Wild West, 52 Emory L.J. 963, 969 (2003).
[32] Unif. Parentage Act § 707 (2002).
[33] See Id. at cmt.
[34] Margaret Ward Scott, 52 Emory L.J. 963, 981 (2003).
[35] See FLA. STAT. § 742.17 (West 2003 ) Disposition of eggs, sperm, or preembryos; rights of inheritance
A commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple's eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.
(1) Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm.
(2) Absent a written agreement, decisionmaking authority regarding the disposition of preembryos shall reside jointly with the commissioning couple.
(3) Absent a written agreement, in the case of the death of one member of the commissioning couple, any eggs, sperm, or preembryos shall remain under the control of the surviving member of the commissioning couple.
(4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman's body shall not be eligible for a claim against the decedent's estate unless the child has been provided for by the decedent's will.
[36] See Fla. Stat. § 742.17(3) (West 2003).
[37] A similar discussion of the laws of Louisiana, Virginia, North Dakota, and Florida can be found in Margaret Ward Scott’s comment, A Look at the Rights and Entitlements of Posthumously Conceived Children: No Surefire Way to Tame the Reproductive Wild West, 52 Emory L.J. 963, 969 (2003).
[39] “A gift made in contemplation of the donor’s imminent death.” Black’s Law Dictionary 552 (Abridged 7th ed. 2000).
[40] “In the womb; during gestation or before birth.” Black’s Law Dictionary 664 (Abridged 7th ed. 2000).
[42] See Id.
[44] See FLA. STAT. § 742.17(4) (West 2003).
[49] None of the statutes discussed above define “conception” or “conceived.” For this reason, the author’s analysis is based on the meaning of “conception” discussed supra.
[50] In re Estate of Kolacy, 753 A.2d 1257, 1261 (N.J. Super. Ct. Ch. Div. 2000).
[51] The Rule Against Perpetuities could negatively impact a devise to a posthumously conceived child because of the problem of ascertaining the life in being; however, the Rule Against Perpetuities’ affect on such a devise is outside the scope of this paper.
[52] See Kolacy at 1259.
[53] See Id.
[54] Id. at 1262.
[55] See Id. at 1264.
[56] The court did not define the word “support”.
[57] See Woodward at 259.
[58] See Id. at 264.
[59] Kolacy at 1262.
[60] Woodward at 265, quoted by Michael T. Morley, Et Al., Developments in Law and Policy: Emerging Issues in Family Law, 21 Yale L. & Pol’y Rev. 169, 177 (2003).
[61] Woodward at 266, quoted by Michael T. Morley, Et Al., 21 Yale L. & Pol’y Rev. 169, 177 (2003).
[62] The following statutory scheme is the author’s original work.
[63] The author believes that mandated compliance with this form would render moot the legal status of cryopreserved sperm. The author further believes that fertility clinics’ mandated compliance with this form would be the first step in a much-needed regulatory structure for fertility/reproductive clinics.
[64] The author aspires for this statute to be construed in much the same manner as common law marriage statutes are in states where common law marriage is recognized. Therefore, cases from other states in which the establishment of common law marriage is at issue shall be persuasive authority.
[65] Intent and capacity shall be considered in this prong.
[66] “Support” shall include estate and/or trust proceeds.
[67] The author recognizes the perceived unfair treatment of posthumously conceived and born children applied by such a statute of limitations; however, the state’s interests in promptness and finality outweigh the potential property rights of the posthumously conceived and born child.