The number of children conceived through in vitro fertilization has doubled over the last decade. The technology that has made these children possible has also challenged inheritance laws, especially in circumstances when a child is conceived after the death of a parent.
While this may sound bizarre, posthumously conceived children can become a quandary for the rich and the not-so-rich alike. The problem is always about money. The rich worry about who will get their assets after they are dead, while people of more meager means have turned to the courts in the hope of collecting federal benefits.
"We're going to see a flurry of activity on this, because new technologies are ballooning," said Sharon L. Klein, managing director at Wilmington Trust and chairwoman of the trusts, estates and surrogate's courts committee of the New York City Bar Association.
"You read about women in their late 20s and early 30s who are saving their eggs and want to focus on their careers and haven't met the right partner yet," she said. The woman's eggs could be used to produce a child even if the woman never wanted the eggs used after her death.
The law is clear on one thing: when a trust document does not address the issue, Ms. Klein said, "children born with the new technology are entitled to inherit with the same rights as a natural-born child."
Consider the example of a sick person who, before undergoing chemotherapy that will cause sterility, donates sperm or eggs to be frozen, in hopes of having children later. The patient intends to have the children after recovery. But should the patient die without something in writing stating this intent, the surviving partner could have a claim on that genetic material and could use it to produce a child.
Other possibilities exist. A couple who has embryos left over after having children through in vitro fertilization could, instead of destroying them, donate them to a woman, essentially giving her a child they created. That could have unintended consequences. "It's not inconceivable now that if the father and mother of that embryo were to strike it rich, the child born of that other woman could say, 'Those are my genetic parents,' " said John M. Olivieri, a partner at White & Case. And if the child says that, chances are he or she would ask for a share of the genetic parents' wealth.
"Posthumous reproduction is the perfect storm of competing interests," said Susan M. Wolf, professor of law, medicine and public policy at the University of Minnesota School of Law. "There's the surviving partner who wants to reproduce, the interests of the deceased while they were alive or as they memorialized them, the pre-existing kids who don't want their interest diluted and finally the kids who are brought into the picture but who may be financially most at risk."
Several lawsuits have already tested this issue, and many more have been settled privately, lawyers said.
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In 2007, the New York County Surrogate's Court decided in the case In re Martin B. that two posthumously conceived children could benefit from a trust created by their grandfather, Martin B., for his two sons and any grandchildren. (Real names were not used in the suit to protect the children.)
The case was brought jointly by Martin B.'s wife and the widow of their son, whose frozen sperm had been used to conceive two children three and five years after his death. They wanted to know whether the posthumously conceived children were descendants for the purpose of the trust.
The answer decided whether tens, if not hundreds, of millions of dollars from the estate of Martin B. went to those children or if all of it was divided among the surviving son and his children.
What made this case even more intriguing was that Martin B.'s wife had the ability to divide the assets in the trusts her husband set up as she saw fit. Lawyers on both sides said even if her posthumously conceived grandchildren were not considered, she could have cut her living son out of his inheritance.