8 Houston Journal of Health Law & Policy 47 ( 2007)
Ruth Zafran
DYING TO BE A FATHER: LEGAL PATERNITY IN CASES OF POSTHUMOUS CONCEPTION
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II. Conception after Death--The Possible Scenarios
Post-mortem conception (PMC) can take place after the death of the genetic father, the genetic mother, or both genetic parents. In the most frequently encountered situation, the genetic father has died and conception is requested by the person with whom the deceased had enjoyed a serious romantic relationship--his wife, fiancée, or cohabitating significant other. Any such individual, without regard to formal marital status, will be referred to as a “partner” .
In the first cluster of PMC scenarios the woman wishes to use sperm that were frozen and stored in a sperm bank before the man's death. Typically, either of two scenarios accounts for the sperm being in storage. First, the couple may have been dealing with fertility problems; in that event, the death may have taken place while the couple was undergoing fertility treatments or after they had terminated the treatments for one reason or another. Alternatively, the sperm deposit may have taken place prior to the initiation of chemotherapy or radiation treatments for cancer to preserve some sperm unaffected by the treatments. In all of these cases, there could be either an explicit directive regarding use of the sperm in the event of the man's death or else evidence of the deceased's implicit intent. Such evidence, whether explicit or implicit, is more likely to be found in the second scenario, when the man is confronting a life-threatening situation. It is possible that he acted simply to preserve potent sperm in order to be able to choose, after recovery, whether to procreate, but the chances are greater in this scenario that he also contemplated the use of his sperm even in case of death. In the first scenario, when the sperm was deposited as part of fertility treatments, there is usually a clear indication that the man wanted to become a father, but that does not necessarily imply that he intended to become a father after death (or even once the fertility treatments end).
In the second cluster of cases, conception occurs through the use of sperm retrieved soon after the man's death. If not forbidden by law or regulation, usable sperm can be retrieved within hours after death. Existing storage techniques allow for the woman to be artificially inseminated immediately or later. It may be presumed that in most cases of after-death retrieval, there will be no explicit expression of intent concerning postmortem fathering; evidence of a desire to become a parent does not necessarily encompass becoming a parent after death. As we will see later on, the element of intention has a bearing on the determination of legal paternity.
Notwithstanding the complexity of the multiple scenarios and their distinctive characteristics, they lend themselves to analysis on the basis of two ubiquitous factors: that of intent, and that of affiliation. The Intent Factor examines the intention of all relevant parties (the mother, the sperm provider, and the mother's new partner, if any) regarding the gamete. It asks what they intended to do with the gamete--in particular, who was intended to become the parent of the child--and what their present intentions are. The factor is not limited to past intention or to overt manifestations; it takes account both of the sperm provider's presumed intention and of the wishes of the mother and her new partner at a later time. The Affiliation Factor explores the precise link between the child born as a result of the PMC and the individuals asking to be declared his or her parents. It inquires into the relationships (genetic, care-giving, etc.) between the child and the person asking (or being asked) to be recognized as the parent.