Children Conceived Using Posthumously Retrieved Sperm, Entitlement to Social Security Benefits

Mary F. Radford (professor of law, Georgia State University) has published her article Postmortem Sperm Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows, 2 Estate Plan. & Community Prop. L.J. 33 (2009). 

Below is an excerpt from the introduction of the article:

Postmortem sperm retrieval (PMSR) is the process of removing sperm from the cadaver of a recently deceased male. Utilizing one of a number of techniques, doctors are able to extract sperm from the decedent’s body no later than thirty-six hours after death.  Typically, the sperm are cryopreserved (frozen) for future use. 

The use of PMSR raises a host of legal, ethical, moral, and medical questions.  These questions encompass a wide range of issues.  It is ethical to extract gametic material from a human without his or her consent?  Who has authority, if anyone, to consent to PMSR?  Who has the authority to receive the sperm extracted through PMSR, and to what uses may the sperm be put?  Should PMSR be treated as an anatomical gift?  Should the rules for extracting sperm from deceased minors differ from those for extracting sperm from deceased adults? Is a man’s sperm “property” that can be given away or devised?  Does sperm have an economic value and, if so, what are the tax ramifications?  Can sperm be sold after the father’s death?  May a child who is born using posthumously extracted sperm inherit from the father?  Is such a child included in a class gift, either under the father’s will or the will or trust of another?  Will that child be treated as a child of the father for purposes of eligibility to bring a wrongful death lawsuit?  If children conceived using PMSR are allowed to take property from the father or others, or are entitled to government benefits, does this offer a financial incentive to for women to retrieve a man’s sperm after he dies and become impregnated with it?  If state laws relating to PMSR differ, will this encourage “reproductive tourism” by people who are seeking more advantageous treatment for their children?  What are the social and psychological ramifications to a child who is born under these circumstances? This article focuses on one small aspect of this multi-faceted technological development: The entitlement of a child, conceived using posthumously retrieved sperm, to social security benefits as a survivor of his or her father.