Published on: Thursday, January 24, 2013
University of St. Thomas School of Law professor Ben Carpenter was recently recognized by the Michigan Supreme Court, who cited his article on posthumous conception. Carpenter's article, "A Chip Off the Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It," addresses the legislative evolution of posthumous conception.
"I was fascinated by both the moral and legal issues [posthumous conception] raised," he says. "A number of authors had tackled specific aspects of the issue, but none had done a comprehensive survey of the law on the topic around the country, both historically and as it presently exists. I wanted to pull everything together in a way that hadn't been done before and provide a starting spot for future research in this area."
Carpenter notes that the Michigan ruling—which held that children conceived through artificial insemination after the father's death are not considered heirs of the father—was un surprising. Minnesota in particular recently amended their intestacy statutes to expressly exclude posthumously conceived children.
However, states are split on the issue, and others have reached the opposite conclusion. The confusion stems from the language of state intestacy statutes. Many such statutes were drafted before posthumous conception and cryopreservation was even possible, which makes determining legislative intent difficult.
"Almost all states' statutes addressed children born after the death of the father, but not conceived after his death," Carpenter explains."[T]he trend among legislatures [today] seems to be to create interests for posthumously conceived children, while the trend among courts seems to be the opposite."
Carpenter's original article and corresponding chart can be found here. Additionally, find his follow-up article, "Sex Post Facto: Advising Clients Regarding Posthumous Conception" here (discussing how to draft language in estate planning documents).