Professor Julie Shapiro weighs in on the debate:

I wrote yesterday about the posthumous conception case heard by the US Supreme Court. After reading some of the press coverage I wanted to add one more observation.

Look at this coverage from the Time blog Healthland. I was particularly struck by this quote and the reasoning behind it:

“Children who are born after a parent passes away didn’t choose the way they were conceived,” says Laura Riley, a staff attorney at the Cancer Legal Resource Center, a program of the Disability Rights Legal Center at Loyola Law School. “They have a right to be free of discrimination based on the circumstances of their conception.”

Now generally a claim for equal treatment is a powerful one, because we all like to be in favor of equality generally. But as I’ve said other places, equality claims can be tricky and may need to be carefully examined.

Think about this one. As a general matter, I agree that children conceived via ART should not be treated differently than children conceived via intercourse. Thus if a state had a law that said children born during a husband’s lifetime who were conceived one way were to be treated differently from children born during the husband’s lifetime who were conceived the other way I’d say you had a problem.

But is that what is happening here? Is the line being drawn between children conceived via ART and those not conceived via ART? I think it would be more accurate to describe a different line–a line between children conceived before death and those conceived after death. All those in the first category are covered by social security. All those in the second category are excluded.

(It is true, of course, that all those in the second category are children conceived via ART, but that’s not the reason they are being excluded. The best way to demonstrate that is to observe that those conceived via ART during the husband’s lifetime are covered.)

The next question for me, then, is whether it is reasonable to draw a line based on when the child is conceived. (For those who are really thinking about legal analysis, note that there’s also a question of what sort of scrutiny a court might use for a line based on time of conception relative to death. I don’t think it’s likely courts will find this a problematic category, so I think they’d just think about rationality.)

Now I think you have to draw a line somewhere. We know sperm can be frozen for decades and the idea that you could come along twenty years after a man died and claim entitlement for his child’s social security benefits seems unreasonable to me. And anywhere you draw that line is rather arbitrary. Could be five years or two years or at the time of death. So if the legislature chose to draw the line there, I guess I think it is there right.

After all, any child conceived after the death of the man is conceived knowing there will be no social security (at least once the law is cleared up. This is not the case now.) The child is also conceived quite deliberately. So you make your choice about whether you want to have a child under these circumstances.

It’s probably clear that I’m not overly sympathetic to these claims. It does seem clear to me that a man should be able to make provisions for posthumously conceived children in his will, should he choose to do so. And we need to take care of children conceived before the death of the man, as they may have been conceived when there was no thought that he might not be there to help raise them.

There’s one last question I’d toss out. Suppose husband and wife wanted to have children but discovered health issues and so were using ART. Imagine they discovered a defect in husband’s sperm and so used sperm from a third-party. If a child was born in this manner before the husband died, social security is clearly available. But what about if he died leaving the sperm and instructions that he wanted her to continue to use it. I cannot imagine that if a child were conceived with that same sperm after his death many people would say it was his child. That’s an interesting thing to think about for another time.

Professor Shapiro ends her article with a very provocative question about fatherhood. While I certainly cannot speak for the general population, I would certainly argue that a child conceived from donor sperm is the legal child of the deceased husband. Full stop. I would not draw a line in the sand and contend that a child created through donor sperm and born while his father is alive is any less his son if he was conceived and delivered after his father died.

My use of the term “father” is intentional as the law already recognizes a man or woman who uses donor gametes as the parent of any resulting child. I can find no compelling reason to characterize that legal status differently because of the time of conception or birth of the child. Ultimately if a man or woman takes steps with the intent to bring that child into the world, then they should be recognized as the parents regardless of whether they are alive or dead at the time of their child’s birth (or conception).

Let me conclude with this hypothetical to respond to Julie’s. A husband and wife have sexual intercourse. Three days later the husband dies in an automobile accident. At the time of his death, his wife is medically not considered pregnant as conception can come as long as five days after sex. The day after her husband’s premature death, the wife conceives. Would anyone argue that her deceased husband was not the father? If most people would recognize him as the father, why should the result be any different than if that same couple had undergone an IUI with donor sperm three days before the husband’s death? For me, focusing upon the time of fertilization is purely arbitrary and leads to inequitable results that only serves to harm the resulting child.