Article on Posthumous Conception

Devon D. Williams (J.D. candidate, Campbell University School of Law) recently published his article entitled, Over my dead body: the legal nightmare and medical phenomenon of posthumous conception through postmortem sperm retrieval, 34 Campbell L. Rev. 181 (2011). The introduction to the article is below:

All great medical phenomena begin as a rarity, taking years to increase in numbers and success stories–if in fact they ever do. These medical marvels initially shock the mind of an average citizen if he or she is even aware the marvel exists and is medically possible. Such is the case with postmortem sperm retrieval (PMSR). PMSR involves extracting sperm–or gametic material–from a recently deceased male for the purpose of impregnating a woman, presumably his surviving wife, and conceiving a child with her after his death. [FN2] Most often, the extracted sperm is frozen for future use. [FN3]

PMSR, however, is not a new concept; its origin dates back to 1980. [FN4] Nor is it strictly confined to the United States. [FN5] Although PMSR *182 is a worldwide, death-defying occurrence, it lacks a legal backbone. [FN6] For this reason, hospitals have been forced to draft their own rules regarding the procedure. [FN7] While the medical community has done well with promulgating guidelines for facing this unusual occurrence on its own, this Comment suggests the need for legislation on the topic in order to protect all parties involved. [FN8] Furthermore, legislation is needed to resolve what happens to a child conceived and born from postmortem sperm retrieval as it relates to probate, class gifts, social security, and legal status in general. [FN9]

Part I of this Comment lays a historical foundation of the gradual development of case law dealing with reproductive rights as they relate to postmortem conception and discusses uniform laws that have partially addressed the issue of PMSR. Part II explains more specifically the difficulties facing the legal community due to the lack of precedent on the topic and lack of legislation; it also delves into the problems of construing postmortem intent and how that uncertainty affects PMSR from the outset.

The first three subparts of Part III discuss the public policy arguments against PMSR, while the fourth subpart takes a look into how society views it. The final two subparts of Part III present arguments for *183 why PMSR should not be banned and suggest the implementation of a “Statute of Formalities” to address the problems surrounding PMSR.