In a Massachusetts case, Social Security benefits were also at issue. The plaintiff was impregnated with the sperm of her deceased husband and gave birth to twin daughters. Her husband had banked the sperm before undergoing treatment for leukemia, which eventually killed him. The Social Security Administration denied the benefits and the widow sued in federal court. The U.S. District Court awarded her children benefits, saying if there is indeed a genetic relationship between the child and the decedent, and the decedent clearly consented to posthumous conception and to supporting that child, then the children are eligible for his inheritance.
In Arizona, in yet another Social Security case, the court didn't even dispute the parentage of the children. It held that the children need only prove, under Arizona law, that they were the father's legitimate children. Once established, dependency at the time of the father's death was presumed and benefits were thus awarded.
But while the three cases turned out favorable to children conceived postmortem, there have been a string of cases since then that have not been so generous-the primary one being the case in Florida in which the wife had sperm retrieved from her husband postmortem. The case, Stephen v. Barnhart, is the only one to date in which the decedent's gametes were retrieved after his death rather than voluntarily stored while he was alive, though observers say that fact was irrelevant to the court's decision.
Baird says she found the case in Florida so intriguing, her firm contacted several hospitals in Colorado to see if they retrieve sperm post mortem. She was told they did not.
"Everyone we contacted, and we contacted quite a number, said they hadn't even heard of it," Baird says.
There was another postmortem conception case, out of New York, but the courts in that case allowed the child to be a beneficiary. In that case, the husband froze sperm before he got chemotherapy treatments for cancer. The treatments didn't go well and the man died. The wife used his sperm to have several children. The man had not accounted for these children in his estate plan, so the trust that had been set up for his heirs sought guidance from the court. In the end, the court looked to the man's intent and determined there was enough evidence to say he would have wanted these children to be beneficiaries of his trust.
"It's one thing to have frozen embryos and go through with it. You have cancer, you want your wife to be able to have kids, versus, the wife extracts his sperm without his knowledge," Baird says. "Unless he had some document saying he had always wanted kids no matter what, I think [in the latter case] the court would likely say the child would not be a beneficiary."
In Missouri, there are no laws regarding reproductive technology, and that's actually hurt gay couples, says Dara Strickland, a family law attorney in St. Louis. Strickland had as clients a lesbian couple that decided several years ago to have children together. Each woman conceived a child. But after several years, they broke up, and now one parent doesn't want the other to see her child. The courts allowed that parent to sever ties with the other parent.
"The court in Missouri found there is no room in Missouri law for a child to have two mothers," Strickland says.
Interestingly, Missouri's "contracts laws" are actually very strong, so Strickland helps her clients structure contracts to protect their rights when it comes to the fruit of assisted reproductive technologies. Before the children are born, the genetic material collected is actually considered property. Strickland helped write a contract for one couple, for instance, that bought leftover frozen embryos from another couple that no longer needed them.