Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent
![handle is hein.journals/abaj48 and id is 942 raw text is: Perpetuities in the Atomic Age:
The Sperm Bank and the Fertile Decedent
Posthumous children, fathered by virtue of a sperm bank, may
soon be creating problems in the construction of wills. If such children
turn out to be measuring lives, the Rule against Perpetuities may apply
in a manner that will put the case of the Fertile Octogenarian to shame.
A sensible solution, asserts Professor Leach, would be to extend the
measuring life to the period of reproductivity. One possible result of
this, he notes, may be a new legal concept: the child en ventre sa
frigidaire.
by W. Barton Leach 0 Story Professor of Law at Harvard University
WHEN lee v. Audley, 1 Cox 324
(1787), was decided, holding that a
woman of 70 was conclusively pre-
sumed to be capable of bearing chil-
dren,1 knowledge about this matter
was mostly derived from the Bible,
especially Genesis, XVII, 15, et seq.,
recounting how Sarah bore Isaac at
her age of 90. (Courts studiously failed
to refer to the fact that at verse 17,
when God told Abraham that this
would happen, Abraham fell upon
his face and laughed. But, if the
things that you're li'ble to read in the
Bible are necessarily so, it did hap.
pen.) Since 1787 these Fertile Octo-
genarian cases have bedevilled estate
planners and destroyed perfectly sensi-
ble wills and trusts with the remorse-
lessness of a guillotine. The acme of
silliness was achieved when an English
court ruled that it was conclusively
presumed that a widow of 67 could
have a child and that the child thus
born could in turn have a child before
the age of five! Re Gaite's Will Trusts,
[1949] 1 All E. R. 459. In fairness it
should be added that the court
squirmed out of holding the gift void,
but on a ground which could not pos-
sibly be supported. (See Comment by
J. H. C. Morris in 13 Conveyancer
(N.S.) 289 (1949) and Leach's reply
to Morris at 68 L. Q. Rev. 46 (1952),
both quoted in Leach & Logan, Future
Interests and Estate Planning 701-702
(1961) ). In all the Anglo-American
world only one Irish judge, Gavan
Duffy, J., rejected this nonsense. Ex-
ham v. Beamish, [1939] I.R. 336.
American courts have softened the
impact of the Fertile Octogenarian con-
clusive presumption by construing such
words as children to exclude after-
horns on the basis that the testator or
settlor knew the facts of life and could
not have intended a gift to later-born
children of a person beyond the age of
childbearing. (See 6 American Law of
1. This case was done into English by one of
my students, R. C. Berresford (LL.B. Harvard
1933) as follows:
THE SPRIGHTLY SEPTUAGENARIAN
One Edward left a thousand pounds to a spin-
ster, Mary Hall,
And issue, if begotten lawfulee.
But if there were no issue, to the daughters one
and all
Of his good friend and kinsman, Johnny Jee.
Now Mary had reached 40 and was just a nice
old Maid-
For matrimony not exactly molded.
So Johnny Jee's four daughters flounced into
court and prayed
For distribution when sweet Mary folded.
For John was over 70 and so was his wife Liz,
And any normal man like me or you
Would deem them quite incapable of further
monkey biz
And rule that as to children they were through.
But those were other days. it seems. Lord Ken-
yon saw it clear.
Property, §24.22 at page 69 (1952 and
supplements). Though the English
courts have rejected this construction,
the Lord Chancellor's Law Reform
Committee has proposed a statute cre-
ating a rebuttable presumption that a
female of 55 or more and any person
under 14 cannot procreate or bear a
child, and permitting evidence to be
introduced that any person is, for med-
ical reasons, incapable of the same.2
Law Reform Committee, Fourth Report
(Cmnd. 18, 1956) quoted in Leach &
Logan, supra, page 863.)
Since 1787 the science of gynecology
has developed and surgical techniques
He ruled that Liz could still in ventre tote
Another child, who, should the line of Mary
persevere,
Would make the time of vesting too remote.
Poor six-pound superfluity!
Oh wicked perpetuity!
The daughters lost. Said one of them: I do not
think it fair.
Quite false the learned Court's decision rings.
He rules that our old ma may yet renounce her
solitaire
And once again start knitting little things.
Can women bear at 70? Ask British obstetricians
And they will say, My deah old fellowI
Hawdly!
But we who know the RAP and Chancery tra-
ditions
Will simply smile and cite them Jee and Audley.
2. Rebutting the presumption as to those
under 14 Is easy. On May 14, 1939, at the Mater-
nity Hospital in Lima, Peru, a Caesarian section
was performed upon a young girl named Lina
942 American Bar Association Journal](ViewImageLocal?handle=hein.journals/abaj48&div=231&collection=journals&method=preview&ext=.png&size=3)
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Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent
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