Note on Posthumously Conceived Children in Kentucky

Barry Dunn, (2010 J.D. Candidate, Louis D. Brandeis School of Law, University of Louisville) recently published his note entitled Created After Death: Kentucky Law and Posthumously Conceived Children, 48 U. Louisville L. Rev. 167 (2009). The introduction is below:

Some Apollo astronauts, worried that space exploration may affect sexual reproductive ability, stored their sperm prior to departing Earth. Likewise, men battling cancer often deposit their sperm prior to facing chemotherapy and other treatments that may leave them sterile. Others, such as vasectomy patients and workers dealing with hazardous materials, have their own reasons for storing reproductive materials. Though most of these individuals cryopreserve their reproductive gametes in case they become infertile or reconsider future reproduction, what happens to the material once the donor dies? Furthermore, what happens if donors wish that their reproductive material be used to procreate after death?

The question of posthumous conception is particularly relevant in Kentucky. Kentucky, home to Fort Knox and Fort Campbell, contains a class of citizens who are more likely to store reproductive materials than the average citizen: military personnel. Indeed, several sources note that sperm storage increases in times of military conflict.

Kentucky has not, however, addressed problems that may arise in estate distribution if a posthumously conceived child is involved. Rather, much of Kentucky’s statutory law governing the descent and distribution of estates was passed before cryogenically freezing sperm became possible in 1938.

This Note discusses the inheritance rights, or lack thereof, of posthumously conceived children in Kentucky when a genetic parent dies. References are mostly gender neutral, though no reported case involves a posthumously conceived child of an intestate mother. Part II of this Note explains the history of assisted reproduction techniques, the common law treatment of non-marital children, children’s Social Security benefits, and the treatment of posthumously conceived children in other jurisdictions. Part III analyzes Kentucky’s current framework for the intestacy rights of posthumously conceived children and discusses possible alternatives for the General Assembly. Part IV proposes statutes for the General Assembly’s adoption. This Note concludes by arguing that Kentucky’s interests are best served by passing the will alternative, meaning posthumously conceived children may not inherit, but may be provided for by will.