Are You My Parent? Posthumous Parenthood and the Estate Law Blind Spot

Once the stuff of science fiction, posthumous parenthood is now a stark scientific reality. Reproductive technology has been capable of creating life from frozen gametes since the 1980s.[i] More recently, medical advances and ethical consensus have made it feasible to retrieve genetic material from the deceased.[ii] Posthumous assisted reproductive technology (“PART”) is still relatively rare in the US.[iii]

Internationally, however, the deaths of young soldiers have highlighted a growing willingness to use PART. During the Israel-Hamas Swords of Iron War, posthumous sperm retrieval occurred with striking frequency in Israel.[iv] In Ukraine, soldiers have increasingly frozen gametes prior to deployment.[v] To some bereaved families of young soldiers, the possibility of carrying on the deceased’s legacy through posthumous children is an enormous comfort.[vi]

This trend lends new urgency to unresolved issues surrounding the legal relationship between a deceased parent and their PART offspring. Posthumous conception raises two core inheritance problems: whether a child conceived after a parent’s death is a legal heir for purposes of intestacy and benefits tied to that status -- such as Social Security and some life insurance policies in the U.S. -- as well as how such children should be treated under wills, trusts, and other instruments that distribute property to a class of descendants.[vii] U.S. states have used various tools to answer these questions, including imposing time limits on the birth of a qualifying heir and requiring clear evidence of the deceased parent’s consent to PART.[viii]

However, some U.S. states do not answer PART parentage questions at all. This is the case in the thirteen states that use pre-1990 versions of the Uniform Probate Code’s afterborn heirs provision.[ix] For example, the 1990 language allows parentage for a child in gestation at the time of a parent’s death.[x] Courts can read this ambiguous language as excluding parentage of posthumously conceived children, as the 1990 UPC drafters likely intended; alternatively, the application of the interpretive canon expressio unius, exclusio alterius allows courts to read UPC statutes the opposite way.[xi] In such jurisdictions, heirship of posthumous issue is governed by case law or messy patchworks of statutes.[xii]

Israel faces looming legislative challenges around PART parentage because the law around PART itself is not yet settled. Regulation currently rests primarily with nonbinding Attorney General guidelines issued in 2003,[xiii] and courts handling such cases have generally been permissive of PART petitions.[xiv] Israeli law, however, does not currently contain any statutory provisions that explicitly define paternity, motherhood, or parenthood.[xv] With the close of the Swords of Iron War and the proliferation of PART, Israeli lawmakers considering PART legislation that would codify or clarify the attorney general guidelines would do well to prevent imminent confusion by providing a clear definition of posthumous parentage in any such legislation.[xvi]

Ukraine faces a similar tension between a permissive legal PART landscape and inconsistent parentage statutes. In 2024, the Ukrainian parliament passed a law allowing posthumous conception by the partners of fallen soldiers.[xvii] Yet under current Ukrainian law, children born using the gametic material of a deceased individual are not entitled to legal heirship of that parent.[xviii] This creates an entirely new class of children with limited rights and a gap between Ukraine’s PART policy and its inheritance law that demands legislative clarification.

In any jurisdiction without clear or consistent PART parentage legislation, families utilizing PART to carry on a legacy could be left financially and emotionally disadvantaged by a lack of legal recognition of this choice. The European Society of Human Reproduction and Embryology (“ESHRE”) offers one possible solution to these ambiguities.[xix] Its position is that children conceived posthumously should not be treated differently from those born during a parent’s lifetime; they should be legally recognized as the child of the deceased and have inheritance rights, with a suggested five-year limit for conception and birth.[xx]

Whether or not lawmakers in these jurisdictions currently lacking solutions think the ESHRE’s definition is appropriate, legislation in some form is crucial, as the use of PART in wartime contexts may signal an emerging global normalization of the practice. Legislative bodies in the U.S. and abroad must modernize statutory definitions of parenthood for posthumously conceived children to ensure that estate law regimes are capable of responding appropriately to these evolving realities.

Shayna Altschuller is a staff member of Fordham International Law Journal Volume XLIX.

[i] See Benjamin C. Carpenter, A Chip off the Old Ice Block: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It, 21 Cornell J. L. & Pub. Pol’y 347, 354 (2011), https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1358&context=cjlpp.

[ii] See Judith Daar et al., Posthumous Retrieval and Use of Gametes or Embryos: An Ethics Committee Opinion, 110 Fertility & Sterility 45, 45 (2018) (stating the position of the American Society for Reproductive Medicine that “[p]osthumous gamete (sperm or oocyte) retrieval or use for reproductive purposes is ethically justifiable if written documentation from the deceased authorizing the procedure is available”).  

[iii] See Emma Trawick, et al. Posthumous Assisted Reproduction Policies Among a Cohort of United States’ In Vitro Fertilization Clinics, 1 F & S Rep.s 66, 68–69 (2020) (finding that only 42% of IVF clinics surveyed in 2020 had participated in any cases of posthumous reproduction during the past five years, with 6.8% participating in more than five cases).

[iv] See Emma Goldberg, Grieving Parents Ask: Should They Freeze Their Dead Son’s Sperm?, N.Y. Times (Nov. 20, 2024), https://www.nytimes.com/2024/11/20/business/israel-soldiers-sperm.html.

[v] See id. (reporting that more than 200 cases of sperm retrieval had occurred as of November 2024).

[vi] See id. (The parent of 20-year-old deceased soldier Reef Harush described the possibility of posthumously conceiving Reef’s child as “something to hold on to.”)

[vii] See Carpenter, supra note 1, at 359.

[viii] Jennifer Matystik, Posthumously Conceived Children: Why States Should Update Their Intestacy Laws After Astrue v. Capato, 28 Berkeley J. Gender L. & Just. 269, 282 (2013), https://static1.squarespace.com/static/5ecc003be899466983185381/t/5f2092d12e25e76f59854004/1595970261990/Posthumously_Matystik.pdf.

[ix] See Carpenter, supra note 1, at 364, 365 (explaining that UPC language written in 1946 is used in the probate codes of Indiana, Maryland, Ohio, and Pennsylvania; 1990 language is used in Alaska, Arizona, Hawaii, Michigan, Montana, New Jersey, Vermont, West Virginia, and Wisconsin.) 

[x] See Unif. Probate Code § 2-108 (amended 1990).

[xi] See Carpenter, supra note 1, at 365–66.

[xii] See, e.g., N.Y. Est. Powers & Trusts L. § 6-5.7, cmt. (McKinney 2020).

[xiii] See Israel Health Ministry, Swords of Iron War: Posthumous Sperm Retrieval, Preservation and Use, https://www.gov.il/en/service/sperm-preserving-after-death (last visited Jan. 7, 2025).

[xiv] See Raziel et al., Using Sperm Posthumously: National Guidelines Versus Practice, 94 Fertility & Sterility 1154, 1155 (2010), https://www.fertstert.org/article/S0015-0282(09)03955-7/fulltext.

[xv] See Ruth Levush, Israel: Family Court Orders Child Born After Misplacement of Embryo During IVF to Be Transferred to Her Genetic Parents, Library of Congress (Jan. 13, 2025), https://www.loc.gov/item/global-legal-monitor/2025-01-13/israel-family-court-orders-child-born-after-misplacement-of-embryo-during-ivf-to-be-transferred-to-her-genetic-parents.

[xvi] See generally id.

[xvii] See Svitlana Vaslova, et al., Ukrainian Soldiers Will Soon Be Able to Have Children from Beyond the Grave, CNN (Feb. 18, 2024), https://www.cnn.com/2024/02/17/europe/ukraine-soldiers-children-sperm-parliament-intl.

[xviii] See Agence France-Presse, Ukraine MPs Vote to Permit Use of Dead Soldiers' Sperm, 24 News (Feb. 8, 2024), https://24newshd.tv/08-Feb-2024/ukraine-mps-vote-to-permit-use-of-dead-soldiers-sperm.

[xix] See generally Guido Pennings, et al., ESHRE Task Force on Ethics and Law 11: Posthumous Assisted Reproduction, 21 Human Reproduction 3050 (2006), https://pubmed.ncbi.nlm.nih.gov/16923749/ (outlining the ESHRE Task Force’s ethical framework for posthumous assisted reproduction, including consent, counseling, and waiting-period requirements, as a structured approach to regulating posthumous use of gametes).

[xx] See id. at 3052–53.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.