Key Takeaways
- Hospitals and sperm banks that allow use of a man's sperm after his death generally require some evidence that he consented, and practices vary by institution and state.
- Whether a child conceived after a parent's death can inherit depends on state law and, for trusts, on the intent of the person who created the trust.
- Putting your wishes in writing, in the storage agreement and in your will or trust, is the most reliable way to control what happens to frozen sperm.
Suppose a man banks his sperm before cancer treatment and later dies. Can his partner use it to have a child? And if a child is conceived years after his death, can that child inherit from his estate or a family trust?
In this TalksOnLaw Brief, I. Glenn Cohen, Deputy Dean and James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and Faculty Director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, explains how the law handles frozen sperm after death. In about a minute and a half, he covers the two questions that come up most often: who may use the sperm, and whether the resulting child can inherit.
Why Sperm Gets Frozen
Professor Cohen notes that men freeze sperm for a range of reasons, often medical. A man about to undergo cancer treatment may worry that it will damage his fertility, and others bank sperm as they approach the end of their fertile years. The legal questions arise when the man dies while that sperm is still in storage.
Consent Comes First
Can someone use a man's frozen sperm after he dies? Professor Cohen explains that the answer varies from hospital to hospital and from state to state. Hospitals that allow posthumous use or retrieval typically require some form of consent, whether express or more implicit: an indication from the man that he wanted his partner to be able to use his sperm after his death.
Inheritance and Trusts
The question gets harder when money is involved. Professor Cohen describes cases about trusts in which someone wants to use a deceased man's banked sperm to produce new heirs who would share in a family trust. Few courts have faced the issue, he says, and those that have done so have been skeptical. They typically look back to the intent of the person who created the trust, and if that intent did not include posthumously conceived children, the court will not allow the child to inherit.
What to Know Now
The framework Professor Cohen describes, centered on consent and intent, remains the way the law approaches these cases. Courts have treated a man's stored sperm as something over which he holds decision-making authority; in Hecht v. Superior Court, a California appellate court held that a decedent's frozen sperm fell within the probate court's jurisdiction and that his wishes about its use mattered. On government benefits, the Supreme Court held in Astrue v. Capato (2012) that a posthumously conceived child's eligibility for Social Security survivor benefits generally depends on the state's inheritance law. A number of states now spell out when such a child counts as an heir. New York, for example, requires the decedent's written consent, timely notice to the estate, and conception within a set period after death, and the Uniform Parentage Act of 2017 similarly treats a deceased individual as a parent only where consent or intent is shown and the child arrives within fixed time limits. Trust outcomes still turn on the document and the creator's intent: some courts have read words like "issue" or "descendants" to include a child conceived after death where the intent supported it, while others have not. For anyone banking sperm, the practical lesson is to record clear instructions in the storage agreement and in estate planning documents.
