More on frozen
gametes, with 'A Chip Off the Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It' by Benjamin Carpenter in 21
Cornell Journal of Law & Public Policy (2012) 1-80
arguing that
For thousands of years, the process for determining one’s heirs remained unchanged. For a woman, her heirs were fixed at her death; for a man, his heirs were fixed no later than nine months after his death. Then came cryopreservation and, with it, the ability for individuals to conceive children years after their death. This development has created many — largely unanswered — questions. While posthumous conception implicates numerous moral, ethical, and legal issues, this Article focuses on the legal status of posthumously conceived children in the estate law context.
Despite pleas from both courts and commentators, few legislatures have been willing to tackle this sensitive topic. Most judges and scholars who have addressed it agree the three primary goals of any response should be to ensure the efficient administration of estates, carry out the decedent’s intent, and protect the children’s best interests. However, no consensus has emerged regarding which of these goals should receive priority. These goals need not be mutually exclusive, though, but can each be achieved with appropriate legislation. In this Article, I take a critical look at the statutory and judicial approaches proposed to date, break down the strengths and weaknesses of each, and introduce two new concepts that bridge the gaps in the prior approaches. Specifically, statutes should (1) separate the question of whether a posthumously conceived child is an heir from whether the child will in fact inherit assets, and (2) provide fiduciaries discretion to distribute or retain assets when cryopreserved genetic material exists, based on certain conditions. These improvements will provide flexibility not found in prior approaches and, as a result, advance each of the three key goals. This Article provides legislatures, judges, and commentators who tackle this issue with both a comprehensive historical perspective on the issue and a blueprint to follow going forward.
Carpenter concludes -
Almost ten years ago, Chief Justice Margaret Marshall of the Massachusetts Supreme Judicial Court recognized:
As these [artificial reproduction] technologies advance, the number of children they produce will continue to multiply. So, too, will the complex moral, legal, social, and ethical questions that surround their birth. The questions present in this case cry out for lengthy, careful examination outside the adversary process, which can only address the specific circumstances of each controversy that presents itself. They demand a comprehensive response reflecting the considered will of the people.
To date, Massachusetts‘s legislature has ignored this appeal — as have the majority of legislatures around the country. Instead, they have passed the cost and burden of sorting out these issues to their citizens and courts.
The use of both assisted reproduction and cryopreservation will only continue to increase, however, and the issues they create require the attention of legislatures. Specifically, legislatures should recognize posthumously conceived children as a child of the deceased parent for probate purposes and for class-gift purposes if the decedent consented to the posthumous use of his or her genetic material for reproduction. Denying status in these contexts would neither regulate their parent‘s behavior nor, in most cases, create more efficient estate administrations. Recognizing these children, however, would carry out the decedent‘s intent, a hallmark of probate law, and protect the best interests of the innocent children by allowing them to qualify, at a minimum, for benefits unrelated to the decedent‘s estate (such as Social Security survivor benefits and inheritance through the deceased parent). However, courts should allow fiduciaries or custodians to distribute assets, without liability to themselves or the recipients, if the surviving spouse or partner does not notify them within four months after the decedent‘s death of his or her intent to use the decedent‘s genetic material. Further, the fiduciary or custodian should be free (but not required) to distribute the assets to the presumptive beneficiaries if the child is not born within a certain period of time after the deceased parent‘s death, such as three years. Importantly, though, the failure of the survivor to provide notice or to have the child within this period of time should not affect the child‘s status as an heir. Rather, it should just protect the fiduciary, custodian, and existing beneficiaries. A later-born child would still be eligible to receive other benefits as an "heir" (such as Social Security survivor benefits), to inherit through the decedent, to be a member of a class that remains open after the decedent‘s death, and to share in any assets that remain undistributed when the child is born.
'Extreme Life Extension: Investing in
Cryonics for the Long, Long Term' by Tiffany Romain in (2010) 29(2)
Medical Anthropology: Cross-cultural Studies in Health and Illness 194-215 comments
This article explores American conceptualizations of finance, the future, the
limits of biological time, and the possibilities of biotechnoscience through an
investigation of the social world of cryonics—the freezing of the dead with
the hope of future revival. I describe some of the cosmologies of life, death,
time, and the management of the future that circulate within cryonics
communities, and I draw out relationships between cryonics practices and discourses
and more common forms of personal future management prevalent
within American neoliberal capitalism. I also illustrate similarities and differences
between cryonics and more mainstream biomedical technologies. In
doing so, I argue that cryonics is one American manifestation of anxieties
about aging, time, and the future. I investigate the impact of biotechnologies
on self-making and biosociality, and argue that crafting of selves can be deeply
entwined with practices of investment or hope in the future of biomedicine and
technology.
