Academic journal article Duke Journal of Gender Law & Policy

The New Uniform Probate Code's Surprising Gender Inequities

Academic journal article Duke Journal of Gender Law & Policy

The New Uniform Probate Code's Surprising Gender Inequities

Article excerpt


Two married heterosexual couples are in a car crash. The husband of couple #1 dies instantly, as does the wife of couple #2. At the hospital, at their spouses' requests, doctors are able to retrieve Husband #1's (H1) sperm and Wife #2's (W2) ova for cryopreservation. (1) Two years later, Wife #1 (W1) uses her dead husband's frozen sperm to become pregnant; Husband #2 (H2) uses his dead wife's frozen ova and arranges to have a baby with a gestational carrier. (2) Will the predeceased spouses be the parents of the resulting children, conceived and born years after their deaths?

Until recently, few states had a clear answer to this question. The 2008 version of the Uniform Probate Code (UPC) attempts to resolve a broad range of issues arising from assisted reproduction, (3) including issues surrounding postmortem conception. (4) Two sections of the Uniform Probate Code apply to our hypothetical: [section] 2-120 covers assisted reproduction that does not involve a gestational carrier (as with couple #1), and [section] 2-121 applies where there is a gestational carrier (as with couple #2). Both of these sections aim to determine the legal parentage of a child conceived using assisted reproduction. (5)

For couple #1, as long as they were married with no divorce proceedings pending at the time of the car crash, UPC [section] 2-120 presumes that H1 is the father of the child even though his sperm was retrieved after his death. (6) In fact, UPC [section] 2-120 presumes that H1 is the child's father even if W1 used a third party's sperm donated to a licensed physician, not her deceased husband's sperm, to become pregnant. (7) Couple #2, on the other hand, does not benefit from any presumption that W2 was the child's mother. (8) UPC [section] 2-121 raises the presumption of parentage for W2 only if she deposited her ova before she died. (9) Thus, for W2 to be named as the parent of the child, we need either her written consent or clear and convincing evidence that she wanted to have children conceived and born after her death. (10)

Establishing rules for determining parentage is left to the states, yet with little legislation addressing assisted reproduction technologies, children born out of these new arrangements often face uncertainties regarding who are their legal parents. The new UPC sections on assisted reproduction attempt to answer these questions but do so in a way that produces unexpected results for children conceived and implanted after a person dies. Are these unexpected results, and the UPC's different treatment of married men and women, justified?

This Article will examine the 2008 provisions of the Uniform Probate Code regarding assisted reproduction and the proposed standards for determining parentage when a child is conceived after one of the intended parents has died. Part II will briefly discuss the history of legislation covering assisted reproduction, from the first statutes that dealt with married couples using donated sperm, to the more comprehensive laws today. Part III reviews existing law and cases of parentage and inheritance for PMC children. Part IV applies the new UPC provisions to different scenarios in which a man or woman has died before the implantation of a child, or the execution of a surrogacy agreement, has occurred. Part V concludes the Article with recommendations for changes to the UPC.


"Assisted reproduction," in which a woman becomes pregnant through means other than sexual intercourse, first occurred with the use of artificial insemination (AI), which is the transferring of sperm to a woman's uterus or cervix using a syringe. (12) The first published account of insemination of a woman with donor sperm appeared in 1884. (13) The technology to freeze human sperm while still retaining its fertility, called cryopreservation, has existed since at least the 1940s. …

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