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48 Val. U. L. Rev. 1229 (2013-2014)
Thawing the Inheritance Rights of Maybe Babies: An Answer to Indiana's Statutory Silence on Posthumously Conceived Children

handle is hein.journals/valur48 and id is 1287 raw text is: 





   THAWING THE INHERITANCE RIGHTS OF
 MAYBE BABIES: AN ANSWER TO INDIANA'S
 STATUTORY SILENCE ON POSTHUMOUSLY
                CONCEIVED CHILDREN

                          I. INTRODUCTION

    Imagine that David goes to his doctor for a physical. The doctor
finds David to be in perfect health. As David is leaving, he remembers
his wife Jennifer's concern about a mole on his back and decides to have
the doctor examine it. The doctor, noticing the mole's irregular shape,
removes it for a biopsy. A few months later, David receives a voicemail
from his doctor. The results from his biopsy came back positive for
melanoma, a life threatening skin cancer. The shocking diagnosis turns
David's and Jennifer's lives upside down. The doctor schedules David
for an emergency surgery to remove the mole, followed by intensive
chemotherapy to reduce the likelihood of the cancer spreading to his
lymph nodes. Before undergoing chemotherapy, David and Jennifer
decide to have David's sperm frozen through cryopreservation to
preserve the viability of his sperm, and more importantly, to preserve
their intent to have children together.
    Sadly, David's treatments are unsuccessful, the cancer spreads and
he dies intestate, leaving Jennifer alone. David's sudden death is hard to
get over; two years pass and Jennifer is considering using the sperm that
David saved through cryopreservation. Ultimately, Jennifer decides to
use David's sperm, and four years after his death, she celebrates the birth
of twins.' Do these children, the fruit of Jennifer's eggs and David's
frozen sperm, have any rights to inherit from David's estate?2
    In Indiana, the answer is probably not.3 Currently, Indiana's probate
code provides no means of inheritance for posthumously conceived
children.4  Absent any    statutory language, Jennifer and   David's
children -and many other children born through Assisted Reproductive
Technologies (ARTs) - will be denied equal protection of the law.5

1   This scenario is hypothetical and solely the work of the author.
2   See infra Part IV (proposing a code section that addresses the right of posthumously
conceived children to inherit from their deceased parent's estate if certain criteria are met).
3   See infra note 21 (providing the language of Indiana's probate code section that
addresses after-born heirs).
4   See infra note 24 and accompanying text (noting Indiana's statutory silence on the
rights of posthumously conceived children).
5   See Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive
Equality, 76 GEO. WASH. L. REV. 1457, 1457 (2008) (noting that the regulation of reproductive
technologies and protection of reproductive equality is a theoretical issue at present
because very few states currently have regulations to protect the rights of individuals who
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