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Assisted Reproduction

Do The Dearly Departed Deserve To Be Recognized As Dads?

Professor Julie Shapiro has another provocative post, this time re-visiting the issue of posthumous parenthood. In her most recent blog entry, Professor Shapiro analyzes a New Jersey case in which a court is considering whether a child should be entitled to pension benefits even though he was conceived after his father died:

Anyway, here’s another case come along with a slightly different set of facts. Gary Prystauk was a retired Newark, New Jersey police captain. He and his wife Francia were married for 18 years. They tried to have children and Francia suffered several miscarriages. Then in 2006 Gary Prystauk was killed in a scuba accident. Francia had sperm harvested from his body and frozen. She later used it to conceive a child who is now three. The question is whether the child is entitled to pension benefits as Gary Prystauk’s son.

In Francia’s view the case is simple: “Jacob had a father,” she said, “He just happened to pass away.”

I’m afraid that is putting the rabbit in the hat. The question is whether Gary is Jacob’s father and, for my purposes, why that would be. This case is different from the earlier one’s because while there is evidence that Gary wanted to be a father in a general sort of way, he took no steps to have his sperm preserved. There’s no basis on which to conclude he would have wanted to be a father after his death. (I’m not even sure that sentence has meaning, but you probably get the idea I’m driving at.)

If Gary is a father, it must be because his sperm was used. Is that alone enough, even if there’s no evidence he intended this to happen this way? Is it important that Francia had been married to him?

Suppose someone broke into a sperm bank and stole a sample and then used it to become pregnant. Is the provider of the sperm a father to the resulting child? Would the circumstance under which the man provided the sperm matter? Is that different from this case?

I am not sure what the answer is. I am troubled by the idea that the deceased men in these cases are the father of the children involved. Remember that sperm can be frozen a long long time. Is there any limit to how long after death a man can become a father once we start down that road?

Like Professor Shapiro, I too am troubled by this situation. I previously opined that posthumous donation could be morally justified, yet acknowledged situations where such a situation would be unacceptable.

As I previously wrote, my preference in situations like this would be to consider whether the decedent ever evidenced any intention to be a parent. Absent some unequivocal manifestation of intent to conceive the child at issue (as opposed to a general desire to be a parent one day), I would not treat the gamete provider as the legal parent nor extend any benefits to the resulting child. To do otherwise would be to head down a very slippery slope which, in extreme examples, could see individuals attempting to create a child to take advantage of an inheritance or, in the case of Julie Garber, a parent overwhelmed with grief, seek to replace a dead loved one. No one should be involuntarily compelled to become a parent — in life or death.


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