ANNAPOLIS – Having a child with a dead person may become illegal in Maryland, unless the donor of the sperm or eggs consents to posthumous parenthood in a formal written document.
A cross-filed bill nearing passage in both houses of the General Assembly would not apply to anonymous donors. It would also specify the definition of “child” in state inheritance laws to include children conceived within two years of the donor parent’s death, with written consent.
Posthumous conception is “not something that happens every day, but at the same time it’s not unusual,” said Dr. Diana Broomfield, fertility specialist and founder of Fertility Today Magazine. “If the donor does not want to have children after their death … I think that should be their right.”
Broomfield, who is currently conducting a survey regarding donors’ wishes after their death, said that while most known donors would prefer to have their genetic material available posthumously, there are some who say they do not. Requiring written consent would take the guesswork out of it.
While the issue is under debate in the Maryland legislature, a case in the U.S. Supreme Court is questioning whether a pair of underage twins, born 18 months after their father’s death, should receive his Social Security benefits. The twins’ mother conceived them via insemination of her late husband’s frozen sperm.
In that case, the issue is not consent, but the legal rights of the twins as posthumously conceived children. In Florida, where the twins were conceived, children must be named in a will in order to receive property, so the twins are ineligible to receive benefits.
In 2000, the Superior Court of New Jersey declared in a similar case that the children of a deceased known donor were heirs to his estate. In that case, the donor had banked his sperm for use by his wife, but died of leukemia about 18 months before his wife gave birth, and the court determined that the donor had intentionally created the possibility of delayed insemination.
A 2002 Massachusetts Supreme Judicial Court case involving the Social Security Commissioner said that a child from posthumous conception may receive inheritance if the deceased parent had consented to posthumous reproduction and support of the child.
Sen. Delores Kelley, D-Baltimore County, said in a committee hearing last month that cases such as this are the reason behind the proposed bill.
“Right now there isn’t even consistent case law,” said Kelley. “There’s just silence, this void in the law.”
Currently in Maryland, consent from the deceased is not required in order to conceive using a deceased donor’s genetic material. However, under current law, only children conceived prior to the death of a parent can inherit from the deceased parent.
Under the proposed legislation, children conceived up to two years after their donor parent’s death would be entitled to benefits and property if the donor consented to posthumous fertilization. While this would expand the rights of the child, Broomfield said it is not enough.
“From a medical standpoint, two years seems very short,” she said, taking fertility challenges and multiple conceptions into account. “Reasonable, I think, would be at least five years.”
Each version of the bill has passed in its respective chamber, and was heard in the opposite house this week. Delegate Joseline Pena-Melnyk, D-Prince George’s, said she expects the bill to be accepted in both houses.