Comments on: The Supreme Court Meets Frozen Sperm http://blogs.law.stanford.edu/lawandbiosciences/2011/12/01/the-supreme-court-meets-frozen-sperm/ Wed, 15 May 2013 21:56:51 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Gabriel Sulem http://blogs.law.stanford.edu/lawandbiosciences/2011/12/01/the-supreme-court-meets-frozen-sperm/comment-page-1/#comment-16559 Gabriel Sulem Sat, 03 Dec 2011 01:10:12 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2101#comment-16559 I have looked around a little bit and I would just like to complete about what would be the answer in France. Concerning the case of a woman who would like a baby of her dead husband, she will not be authorized to an artificial insemination in France. It is forbidden to use dead people sperm for that. However if the sperm is kept abroad, it is likely that she would be able in some places to use it. 9 months later: if she decide to give birth in France, and the birth occur less than 300 days before her husband's death, there is paternity presumption, and I think there will be little investigation to prove the contrary. The child will be an orphan. If it is later, then she is not obliged to give a name as "father" so it will be a mono-parental family. It is very unlikely that she will manage to have the child consider as orphan. If the child birth occur abroad. Then depending of the countries I suppose there might be some places where the father's name will be put as "father" independently of his life status. Then come the conversion in French administrative civil register. So I suppose that if there is no suspicion, it is possible to stay discrete and have no questions. Now if we consider the recent high court jurisprudence about Menesson couple. They had a child born by a surrogate mother in California. After 10 years of judicial battle, it was confirmed that the filiation is valid. Mr Menesson is the father, Mrs Menesson the mother, as stated by California birth acts. But since the birth method is illegal in France, the child cannot be inscribed on the French civil register, so is not French. It is a bit a strange situation, because there will be no problem theoretically since as son of a French, he is French, however he will have each time difficulties to show it. So it is just going to lengthen all his procedures. According to that, I think that the decision in our case would be that the child will be considered as child of the mother (since the definition of mother is the one who give birth), but not child of his father. So most probably he will be French, but will not be eligible for any orphan help. But there was no such case already, and all these regulation are on the way to change. On which time scale? I have no cue. I have looked around a little bit and I would just like to complete about what would be the answer in France.
Concerning the case of a woman who would like a baby of her dead husband, she will not be authorized to an artificial insemination in France. It is forbidden to use dead people sperm for that.
However if the sperm is kept abroad, it is likely that she would be able in some places to use it.
9 months later: if she decide to give birth in France, and the birth occur less than 300 days before her husband’s death, there is paternity presumption, and I think there will be little investigation to prove the contrary. The child will be an orphan.
If it is later, then she is not obliged to give a name as “father” so it will be a mono-parental family. It is very unlikely that she will manage to have the child consider as orphan.
If the child birth occur abroad. Then depending of the countries I suppose there might be some places where the father’s name will be put as “father” independently of his life status.
Then come the conversion in French administrative civil register.
So I suppose that if there is no suspicion, it is possible to stay discrete and have no questions.
Now if we consider the recent high court jurisprudence about Menesson couple. They had a child born by a surrogate mother in California. After 10 years of judicial battle, it was confirmed that the filiation is valid. Mr Menesson is the father, Mrs Menesson the mother, as stated by California birth acts. But since the birth method is illegal in France, the child cannot be inscribed on the French civil register, so is not French. It is a bit a strange situation, because there will be no problem theoretically since as son of a French, he is French, however he will have each time difficulties to show it. So it is just going to lengthen all his procedures.
According to that, I think that the decision in our case would be that the child will be considered as child of the mother (since the definition of mother is the one who give birth), but not child of his father. So most probably he will be French, but will not be eligible for any orphan help.
But there was no such case already, and all these regulation are on the way to change. On which time scale? I have no cue.

]]> By: hgreely http://blogs.law.stanford.edu/lawandbiosciences/2011/12/01/the-supreme-court-meets-frozen-sperm/comment-page-1/#comment-16535 hgreely Thu, 01 Dec 2011 17:57:53 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2101#comment-16535 This post started as a Center for Law and the Biosciences journal club that Amy Burns moderated on November 29. It was interesting just how unsure the journal club participants were about the "right" policy answer. As new reproductive technologies proliferate, these issues of posthumous and (or) "unintended" children will only get harder. It's certainly not clear to me what we should do. I do tend to side with the children in this case, but that may be because of the evidence that the genetic father (and the mother's then-husband) intended to have more children . . . though he didn't try to provide for them in his will. On a strictly legal perspective, I am vastly ignorant about how survivor benefits work. But, based on the little I think I know, I am uncomfortable with how the 3rd and 9th circuits reached that conclusion, saying "child" is "child" and, implicitly, "child" is "genetic child." Surely when an anonymous sperm donor dies, all the dependent children conceived using his sperm are not entitled to Social Security survivor benefits? Or when a first husband dies, whose genetic children were adopted by a second husband, dependent children don't get survivor benefits. Presumably, there is some thought that the dependent children were dependent (legally) on the dead parent. Of course, "old-fashioned" posthumous children (those conceived before a father's death but born after it - now, thanks to "life" support, also sort of possible for mothers) were never actually "dependent" on their dead father. Maybe intent to be a parent can sneak in here - the intent to have a dependent child? And, of course, where to "conceived but frozen" "children" figure into all this? It makes my head hurt . . . but I bet, along with Amy, that the Supreme Court ignores all the interesting questions. This post started as a Center for Law and the Biosciences journal club that Amy Burns moderated on November 29. It was interesting just how unsure the journal club participants were about the “right” policy answer. As new reproductive technologies proliferate, these issues of posthumous and (or) “unintended” children will only get harder. It’s certainly not clear to me what we should do.

I do tend to side with the children in this case, but that may be because of the evidence that the genetic father (and the mother’s then-husband) intended to have more children . . . though he didn’t try to provide for them in his will.

On a strictly legal perspective, I am vastly ignorant about how survivor benefits work. But, based on the little I think I know, I am uncomfortable with how the 3rd and 9th circuits reached that conclusion, saying “child” is “child” and, implicitly, “child” is “genetic child.” Surely when an anonymous sperm donor dies, all the dependent children conceived using his sperm are not entitled to Social Security survivor benefits? Or when a first husband dies, whose genetic children were adopted by a second husband, dependent children don’t get survivor benefits. Presumably, there is some thought that the dependent children were dependent (legally) on the dead parent. Of course, “old-fashioned” posthumous children (those conceived before a father’s death but born after it – now, thanks to “life” support, also sort of possible for mothers) were never actually “dependent” on their dead father. Maybe intent to be a parent can sneak in here – the intent to have a dependent child?
And, of course, where to “conceived but frozen” “children” figure into all this? It makes my head hurt . . . but I bet, along with Amy, that the Supreme Court ignores all the interesting questions.

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