Lewis Discusses the Legal Consequences of Forming Families Posthumously

Professor Browne Lewis

Reproduction technology allows people to produce children even after their own death.  With the freezing and preserving of eggs or sperm, a biological ‘parent’ can have children well after they’ve died.  In Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously, 60 Case W. Res. L. Rev. 1159 (2010), Professor  Browne C. Lewis addresses the legal morass created when children are conceived posthumously, including: identification of the legal parents, whether the reproductive rights of deceased gamete providers have been improperly negated, and issues concerning the inheritance rights of posthumously conceived children.  Professor Lewis highlights the importance, for children created posthumously, of identifying their legal parents.  The law relies on the identification of legal parents in a number of important instances.  For example, identification of the legal parents determines whether a child is ‘legitimate’ or ‘illegitimate,’ which effects financial support, inheritance under intestacy, collection of social security and other government benefits.  Lewis also addresses the problem of protecting the reproductive rights of dead men.  This section takes on the question of whether allowing posthumous conception interferes with the reproductive rights of the deceased gamete provider – that is whether conception denies the gamete provider the ability to decline to reproduce.  Finally, Lewis looks at what she calls ‘laughing heirs’, that is, distant relatives who do not have a close connection with the deceased.  She notes that a child born of posthumous reproduction could be a laughing heir.  Further, for a man who dies intestate, the birth of a posthumous heir, sometimes many years after his own death, could impact the distribution of the estate.  This further complicates the problems of identifying heirs and finalizing the distribution of estates.  Lewis concludes that while scientists will continue to push the envelope on reproductive technology, legislatures and courts must keep up.  They must continue to act to regulate the available technology, and unravel the legal issues those technologies leave behind for the children they’ve created.

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