Assisted Reproduction: Case Law, Statutes, and Future Suggestions

Raymond C. O’Brien (Professor of Law, Columbus School of Law) has recently published his article entitled The Momentum of Posthumous Conception: A Model Act, 258 J. of Contemporary Health & Law Policy 332 (2009).  Excerpts from the introduction to the article are below:

This Article addresses the scenario of when, through advanced medical technology, a procedure is performed resulting in the birth of a child more than three hundred days–a time suggested by some statutes–after the death of the gamete provider. . . .The essential element is that the act, which results in a future birth, occurs after the death of one or both of the gamete providers. This is the essence of posthumous conception. That is, once the egg and sperm are brought together through assisted reproductive technology to form an embryo, both or either of the persons who donated the sperm and egg or embryo are dead, perhaps for a long time. If this is the point of conception, then the issue arises as to whether the resulting posthumously conceived infant should qualify under the law for paternity, inheritance and benefits. How long should the law wait for conception before terminating status? The law strives for certainty and medical technology has made certainty an elusive prey.

The decisional law we are about to discuss reveals how uncertain society is regarding how to address the paternity, inheritance or benefits associated with the posthumously conceived infant.

The Model Act, recently approved by the American Bar Association, “does not either advocate or oppose the use of [advanced reproductive] technologies, but accepts the reality that they are being used by many people today and proposes legal solutions and protections for those involved.” Nonetheless, using the Model Act as a precipitating vehicle, this Article recommends further steps that may be taken to accommodate persons who harbor sincerely held objections to the medical technology now available to reproductive clinics.

In tribute, this Article will first, briefly describe the evolution of assisted reproductive technologies that allow for human posthumous conception. Second, this Article will discuss the existing cases and how the courts have defined the issues and resulting common law to provide a solution to the need for certainty. Third, statutes that have been proposed and even adopted will be discussed. Lastly, in conclusion, this Article will offer some suggestions as to the future of the debate.