?The brave new world of infertility treatments have pushed the limits of parenthood in unimaginable ways, including the possibility of fathering children posthumously, either from the use of previously frozen embryos or frozen sperm. Children born more than a certain number of months after a man's death have traditionally not been considered their legal offspring, but the new reproductive technologies may change that, as the case of Karen Capato, her deceased husband Robert and her twins, born 18 months after Robert's death, shows.
Capato used frozen sperm to conceive the twins at a Florida infertility center after her husband's death. Florida laws expressly forbid children conceived after the husband's death from receiving benefit or part of an inheritance unless specifically mentioned in his will. Capato's will mentioned only Karen Capato and his three children, including one born to Karen Capato. Both the Social Security Administration and a federal judge denied her petition for benefits, stating that only children conceived while their father was alive were eligible.
The 3rd U.S. Circuit Court of Appeals in Philadelphia overturned the decision, declaring that there was doubt of the children's paternity and that they were entitled to benefits.
Today's reproductive technologies make not only posthumous fatherhood but also posthumous motherhood possible. Because laws vary from state to state, the Supreme Court may be called upon to grapple with the questions of posthumous inheritance and benefits in the future. Parents who remarry but use previously frozen embryos or sperm from a deceased partner, the availability of embryos for embryo adoption and the long survival time of frozen embryos and sperm will complicate the laws governing inheritance after a genetic parent dies.
