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Rights of Children Conceived and Born After a Father's Death

By Gail Goldfarb
November 27, 2007

'As science races ahead, it leaves in its trail mind-numbing ethical and legal questions. The law, whether statutory or decisional, has been evolving more slowly and cautiously.' Kass v. Kass, 91 N.Y.2d 554 (1998).

Over the last several decades, scientific advances have made it possible for a living person to parent a child using a deceased partner's frozen sperm, eggs or a previously fertilized and subsequently frozen embryo or pre-embryo. The scarce case law as well as the statutory law in the several states of this country are ill-equipped to deal with the myriad issues this new technology presents. Such issues include, but certainly are not limited to: 1) whether this genetic material is susceptible to bequest or gift to a loved one for use at a later date to parent a child; 2) what the status of such afterborn child is; and 3) what rights of inheritance from their biological parents these children have.

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