Modern technology has brought with it several family law issues that courts around the nation are struggling to sort through. For example, the New Jersey Supreme Court recently reached a split decision in trying to interpret state family law and parenting rights as they apply to children born by surrogacy. While this is one legal issue involving in vitro fertilization, in another state, a court has been asked to answer paternity questions regarding children who are conceived posthumously as a result of cryopreservation–frozen sperm.

The Michigan state supreme court heard a case last week involving a now deceased man who had frozen some of his sperm when he was ill, so that chemotherapy treatment would not ruin he and his wife’s chances of having more children someday. After the man died in 2001, his widow used the frozen sperm and conceived twins. Because the children were conceived after the man’s death, the Social Security Administration has refused to recognize paternity and grant survivor benefits to the twins.

The SSA has maintained that because the twins were conceived after their biological father’s death, they did not survive him.

This case illustrates an intersection of state and federal law. While the SSA is a federal administration, paternity, inheritance and estate issues are generally based on state law.

Several states do already explicitly afford inheritance rights to children who were posthumously conceived. Back in 2000, a trial court in New Jersey ruled that a pair of twins who were conceived after the death of their biological father were his legal children and heirs.

While a patchwork of state and federal laws govern modern reproductive technology issues, this remains an especially complicated area of family law in New Jersey and many other states.

Source: USA Today, “Benefits for posthumously conceived children considered,” Paul Egan, Nov. 13, 2012

Source: Estate of Kolacy, 753 A. 2d 1257 – NJ: Superior Court, Chancery Div. 2000

• Our Kingston law firm handles a variety of family law concerns. More information is available on our New Jersey Family Law page.