The federal Department of Health and Human Services estimates that there are currently approximately 600,000 frozen embryos in the United States and the number continues to grow each year. Of these, it is estimated that approximately 60,000 could be implanted for full term pregnancy. In still other cases, a father or mother may freeze and store some sperm or eggs for future family planning purposes. In either event, a mother must have artificial insemination or in vitro fertilization or the embryo implanted. It is possible, even likely, that some of these embryos may be implanted and born after the passing of the father or mother with the use of a surrogate mother. The legal rights of these posthumously conceived children are still being fleshed out in legislatures and courtrooms throughout the country. In 2012, the United State Supreme Court dealt with rights of a posthumously conceived child to the Social Security survivor’s benefits of the deceased parent in Astrue v. Capato.


The Supreme Court held in Astrue v. Capato that the issue of whether or not the posthumously conceived child in issue was entitled to Social Security survivor’s benefits was answered by looking to the state law. State law would answer whether or not the child could inherit under the state’s intestacy laws. Fortunately for New York, Governor Cuomo signed legislation on November 21, 2014 helping to clarify the inheritance rights of posthumously conceived children under New York law. New York also has one reported opinion of a case dealing with the rights of a posthumously conceived child in the case of In the Matter of Martin B. 841 N.Y.2d 207 (Sur. Ct. New York Co. 2007). The case dealt with two posthumously conceived children born to a widow, from the sperm of her deceased husband and the rights of the children to receive distribution from a trust created by the paternal grandfather. The Court found that while the father may have passed prior to conception, the Court only had to determine if the children fit the definition of “issue” and “descendent” under the terminology utilized in the trust document. While this addresses a fair portion of the children so conceived or otherwise under the jurisdiction of New York law, there is still a fair portion of the law that can only be addressed by Congress. Veteran’s Administration benefits is one large, looming class of children who still do not have clarity with their rights to any monies or other benefits otherwise due to children conceived and born during the life of the deceased service member. In 2003, the USA Today reported that some troops freeze their gametes before being deployed to a combat zone. In May, 2008 the United States Army Legal Services Agency stated via a periodical newsletter that Veterans Administration benefits eligibility criteria should allow for children conceived of via artificial insemination.


The speed of medical technology and techniques has already eclipsed legislative enactments. New York’s law, however, seems to cover a large segment of the potentially affected children. To qualify for the protections of New York’s law four things must occur:

  1. The parent must expressly consent to the use of genetic material after death. The consent must be in writing within seven years before the death of the parent/donor; and
  2. Notice of the existence of stored genetic material must be provided to an estate representative within seven months of issuance of letters testamentary; and
  3. The written consent must be recorded in Surrogate Court within seven Months of the death of the parent; and
  4. The child must be in utero within 24 months or born no more than 33 months after the parent’s death.
Contact Information