Posthumous Conception and Family Law
Key Takeaways:
- Assisted reproduction technology gives people more options for getting pregnant later, even after one of the partners has died.
- If the genetic parent is the surrogate mother instead of the donor mother, then child custody can go to family court.
- Questions of parentage generally arise after a parent’s death in terms of probate.
As modern technology continues to advance, couples have more parenting options. The options for couples wishing to put off having a child are widely available through reproduction technology. Assisted reproduction technology is more common than it once was. This includes in vitro fertilization (IVF), freezing embryos, or using a husband’s sperm.
Sometimes, a spouse or partner may die before the frozen embryo is implanted. The surviving widow can decide to have the embryo implanted. This could cause issues in family law. If you are in such a situation, it is best to speak with an experienced family law attorney.
Child Custody of a Resulting Child
When a woman has a child, we all know the parentage of the mother of the child. The alleged father is the deceased person, and there are no issues about the father’s parental custody. For a posthumously conceived child, the biological mother will have sole custody of the posthumous child.
What could become an issue is whether or not the paternal grandparents have any visitation rights with the resulting child. A DNA test can determine the paternity of the child born of posthumous reproduction.
In very rare cases, surrogacy can use a frozen embryo when the mother dies before being able to have a child. The surviving spouse or partner may have had a surrogate carry the child. If there are questions after the birth of the child’s genetic parent, a DNA test can provide answers.
If the genetic material from the DNA test shows the biological mother was the deceased parent, then there are no custody issues. The father will have sole custody. However, if the genetic parent is the surrogate mother, then child custody can go to family court in a custody case.
Most of the time, this does not really come up in family law. Questions of parentage generally arise after a parent’s death in terms of probate. Suppose the parent’s estate is being distributed. Someone claims the child is not the child of the deceased parent and is not entitled to survivor’s benefits, Social Security, or intestate inheritance rights from the decedent.
For more information on posthumous conception, or should you have a child after the other parent dies, contact a local family law attorney.
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