Law of Wills, 2016A

jurisdictions that permit and regulate surrogacy have limited it to gestational surrogacy. Under a
gestational surrogacy arrangement, the surrogate provides only the womb. The maternity dispute in
those cases is between the intended mother and the surrogate.
6.2 Posthumously Conceived Children
Heirship is determined at the person’s death. The person’s death is when intestate property
passes by intestacy to the deceased’s heirs. Before the person dies, a potential heir has no property
interest but merely an “expectancy” in the dead person’s intestate estate. The cases discussed in this
section involve the right of posthumously conceived children to inherit from their fathers. The
resolution of this issue is important because the existence of posthumously conceived children has
the potential to impact the distribution of a man’s estate. If the man dies with a validly executed will
leaving his estate to his children, the question becomes whether or not posthumously conceived
children should be included in the definition of “children”. In the event that a man dies without a
will, the question to be resolved is whether or not posthumously conceived children should be
considered heirs under the intestacy system. The legal issues relevant to the discussion are: (1)
Whether the posthumously conceived child should be recognized as a survivor of his or her father
under the state’s intestacy system and (2) Whether the posthumously conceived child should be
given the right to inherit through his or her father.
The issue of posthumous reproduction inheritance rights usually arises in two contexts.
Context One: Facing a life threatening illness or situation, a man has his sperm stored for future use.
After the man becomes sterile, dies or is killed, the woman uses his sperm to conceive his child.
Context Two: A man dies or is killed without storing his sperm. Then, the woman has his sperm
harvested from his body and uses it to conceive his child. 40 The result of either context is a child
born years after the death of his or her father. Both scenarios mentioned above lead to the following
two questions: (1) Whether the resulting child should have the opportunity to inherit from his or her
father, and (2) Whether any conditions should be placed on the child’s right to inherit from his or
her father.
When reading the materials in this chapter, you should think about the interests to be
protected. In deciding whether or not to give posthumously conceived children the right to inherit,
the state must strive to protect: (1) the reproductive right of the deceased man; (2) the financial
interests of the posthumously conceived child; (3) the financial interests of the deceased man’s
existing heirs; and (4) the integrity of the probate system.
given standing in the case. The court awarded custody of the case to the man who supplied the sperm after deciding that
he would make the better parent.
40 In 1997, Art Caplan, the Director for Bioethics at the University of Pennsylvania, and several colleagues conducted a
study of fertility clinics to find out the number of clinics that had extracted sperm from a deceased man. The results of
the study indicated that the practice of taking sperm from dead men has become more common. Gina Kolata, Uncertain
Area for Doctors: Saving Sperm of Dead Men, The New York Times, www. nytimes.com (May 30, 1997). Media
coverage like this one led to attempts by the government to regulate the process. For example, Roy Goodman, a
Republican New York state senator, introduced a bill that would have regulated the extraction and preservation of the
sperm of dead men. Under the bill’s mandates, doctors could only remove sperm from dead men who had given written
permission for the extraction prior to death. The bill was never enacted into law. See Ian Fisher, Bill Would Govern Use
of Dead Men’s Sperm, nytimes.com (March 7, 1998).
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