1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

5.2.   Cryogenic orphans and waifs

Just prior to ending his own life, Deborah Hecht’s live-in partner, William Kane, bequeathed several vials of sperm to her.  The sperm were cryogenically preserved and stored at a sperm bank.  By the terms of Kane’s will, should she so desire, Deborah could use the sperm to create his future children.  After Kane’s death, Deborah attempted to claim the sperm vials from the sperm bank, but the bank refused to release them to her.  A series of litigations between Deborah and Kane’s adult children ensued over the rightful ownership of the sperm.  Kane’s children wanted the sperm destroyed, but Hecht sought possession, and argued that Kane’s will had legally left them exclusively to her.  One of the key issues in the dispute was over the prospect of posthumous reproduction – when a child is conceived after one or more of its biological parents have died.

Advances in reproductive technologies have made it routine to freeze sperm, eggs, and even embryos, and then later revive them in a completely viable form. Technical competence in cryopreserving gametes has provided greater reproductive opportunities.  For example, individuals who have reproductive disabilities, and need gametes to produce their own babies, can go to sperm and egg repositories where they can purchase gametes to meet their reproductive needs.  Gamete banks facilitate reproduction, providing easy access without the hassle of having to procure fresh sperm and eggs from ready donors.  A health facility can make the collections, and put them on ice for future use.  By turning gametes into frozen products, the distance between the donor and the recipient buyer is attenuated, eliminating potential paternity and maternity disputes, and other related problems that arise when the two parties know each other.  Cryotechnology also protects the reproductive rights of individuals receiving medical treatments, or engaging in activities that have a chance of damaging reproductive tissue, impairing the ability to produce biological children in the future.  By cryopreserving their gametes, the right to a biological child is preserved even when there is subsequent damage to the reproductive tissue.

Gametes can survive many years at ultra-cold temperatures, creating the opportunity to extend the reproductive lifespan beyond an individual’s natural life.  A stored vial of viable egg or sperm may still be in the freezer when its donor’s life has come to an end.  In these circumstances, should we be allowed to thaw the donor gametes to produce a posthumous child?  When the donation is to be anonymous, the decision may be less critical (but, see Johnson for why we might want a donor to remain alive and available for questioning), but when the intention is to conceive a child who recognizes the donor as her posthumous parent, the procedure can reverberate with controversy.  Hecht is one such example.  As cloning and other new technologies for creating babies are developed and perfected, we can expect these controversies to continue to echo.

In Hecht, and cases like it, the argument most often frequently cited in favor of permitting posthumous reproduction and conception is centered on privacy rights.  Reproductive choices, so it goes, are extremely private and intimate decisions that should be made without the intrusion of the courts and legislatures.  The decision about whether to have a child, whether it be achieved during one’s lifetime, or after it, should be left to the private parties, free from interference from others. Both state and federal courts have recognized procreative decisions as a sphere of activity that the government should stay out.

Tied to the privacy right is the right to procreate as enunciated in Skinner v Oklahoma.  Depriving an individual of the right to procreate is an incursion into the most private zone of a person’s existence.  While most would recognize the importance of procreative choice, defining its scope can be quite difficult.  While Supreme Court decisions have consistently upheld procreative liberties, they have simultaneously kept their sights on so-called traditional American notions of family values.  See, e.g., Hardwick v. Bowers.  Thus, a court may acknowledge rights relating to normal, biological reproductive strategy, but may stop short of promoting all reproductive rights, especially those relating to the newer and more controversial procreative technologies. 

A litany of complaints have been released by the nay-sayers to posthumous reproduction.  As far as personal space and procreative liberties, a key question is whether such fundamental rights survive death.  Even assuming that the right to procreate is broader to protect reproduction of any kind, should a dead person’s requests be permitted to extend beyond his lifetime? 

Another problem with posthumous conception concerns beneficiaries of the decedent’s estate.  How do the decedent’s assess get divvied up when there is a chance that an unborn child may coming chasing after the estate many years after all has settled.  The finality of financial and inheritance proceedings (such as probate and social security) that become available after death is another thorny issue for post-mortem reproduction.  Although the decedent must have wanted his genetic offspring to have financial security, if his rights are extinguished by death, the principles on which this issue would be decided reside on very different grounds. 

Another concern is the effect of posthumous reproduction on the integrity of the traditional family unit and the psychological well-being of a child who is born an orphan.  In asking the court to prohibit Hecht from getting access to their father’s sperm, Kane’s children, KatherineKane and William Kane, Jr., claimed that its destruction would “help guard the family unit in two different ways”:

First, such an order would prevent the birth of children who will never know their father and “never even have the slightest hope of being raised in a traditional family.” Second, such an order would “prevent the disruption of existing families by after-born children,” and would “prevent additional emotional, psychological and financial stress on those family members already in existence.” They characterized the desire to father children after one's death as “egotistic and irresponsible,” and stated that they “have lost their father to a tragic death which Hecht could easily have prevented; they do not wish to suffer any more at her hands. Further, they do not wish to be troubled for the rest of their lives with worries about the fate of their half-sibling(s).” 

Given that reproduction is so essential a behavior, how far should society go in putting limits on it?  Is it enough that a cryogenic orphan could end up a cryogenic waif because its single-parent in unable to adequately support her, or because the psychological damage incurred by being born to a dead parent incapacitated her ability to cope with the real world?