This Article addresses the scenario of when, through advanced medical technology, a procedure is performed resulting in the birth of a child more than three hundred days-a time suggested by some statutes-after the death of the gamete provider. The embryo may result from in vitro fertilization or from a woman being artificially inseminated with the sperm of a deceased male gamete provider. And of course the woman could have predeceased too and left a viable ova, that was then fertilized with the sperm of a living or a deceased male to create an embryo, which was then placed into a surrogate, a gestational carrier. The essential element is that the act, which results in a future birth, occurs after the death of one or both of the gamete providers. This is the essence of posthumous conception. That is, once the egg and sperm are brought together through assisted reproductive technology to form an embryo, both or either of the persons who donated the sperm and egg or embryo are dead, perhaps for a long time. If this is the point of conception, then the issue arises as to whether the resulting posthumously conceived infant should qualify under the law for paternity, inheritance and benefits. How long should the law wait for conception before terminating status? The law strives for certainty and medical technology has made certainty an elusive prey.
Raymond C. O'Brien, The Momentum of Posthumous Conception: A Model Act, 25 J. CONTEMP. HEALTH L. & POL’Y 332 (2009).