“A Chip Off the Old Iceblock: How Cryopreservation Has Changed Estate Law, Why Attempts to Address the Issue Have Fallen Short, and How to Fix It,” 21 Cornell J.L. & Pub. Pol’y 347 (2012)

Woody Allen famously said, “I don’t want to achieve immortality through my work. I want to achieve it through not dying.”

But since we must all leave this mortal coil, how does one achieve immortality? 

Socrates gave four arguments why the soul is immortal. Few bought his arguments back then, and they remain a tough sell today.

So how do mere mortals get a touch of immortality? By their good works that live on after them? Or did Shakespeare nail it? “The evil that men do, lives on after them; the good is oft interred with their bones.”

Can you achieve immortality through cryonic preservation—for future defrosting? That’ll be a cold day in hell.

So how can you live on after you shuffle off? By having children, grandchildren and future descendants who benefit from your dynasty trust (in a state that has no rule against perpetuities)?

But what if you have no children during your life? And that, dear readers, is the subject of Professor Benjamin C. Carpenter’s fascinating and scholarly article on cryopreservation—the ability to conceive children after the death of a person (afterplay?) 

Just what is cryopreservation—do you know it when you see it? Prof. Carpenter explains that the genetic material (sperm, eggs or embryos) is treated with glycerol, cooled to about -80 degrees centigrade, then stored in liquid nitrogen at -196 centigrade. Like surrogacy, cryopreservation may be used with artificial insemination or in vitro fertilization. Today, all clinics in the United States that provide assisted reproduction services offer cryopreservation.

The reasons that couples turn to assisted reproduction to achieve a pregnancy are self-evident, says Prof. Carpenter. He goes on to explain why an individual would use his deceased partner’s genetic material to create a child: the individual doesn’t intend to remarry; as a tribute to a deceased partner; for religious reasons; or for a desire to know the child’s genetic origin. And, if a couple had a child before one partner’s death, the surviving parent can produce a full sibling for that child, rather than a half sibling, by using the decedent’s genetic material. Further, if a couple had embryos frozen before one partner’s death and the surviving partner is now sterile, the use of the frozen embryos may be the only way for the survivor to have his own genetic child.

The article analyzes the legal issues raised by birth after the “donor’s” death. May the child: (1) inherit from certain individuals (including the decedent or other family members); (2) qualify as a beneficiary of certain trusts; or (3) receive Social Security or other survivor benefits?

And then there are probate-related issues, for example, pretermitted heir status under a state probate code and inheritance rights under state intestacy statutes. And, life insurance policies and retirement plan documents often defer to state intestacy statutes if the owner dies without a valid beneficiary designation. While the decedent is dealing with worms at Forest Lawn, he’s opened a can of worms above ground with class gift issues, such as interpretation of wills, trust agreements and beneficiary designations that include a general provision for a person’s issue, heirs, descendants, children and grandchildren.

Despite pleas from both courts and commentators, Prof. Carpenter says that few legislatures have been willing to tackle the legal status of posthumously conceived children under the estate laws. Most judges and scholars who’ve addressed this issue agree that the three primary goals should be to ensure the efficient administration of estates, carry out the decedent’s intent and protect the children’s best interests. But there’s no consensus on which goal should receive priority. Prof. Carpenter takes a critical look at these approaches, breaks down the strengths and weaknesses of each and suggests the best set of conditions for legislatures to adopt. In addition, he introduces concepts that haven’t yet been proposed.

This 81-page article is really a treatise on the topic: the history of assisted reproduction (artificial insemination, in vitro fertilization, surrogacy arrangements and cryopreservation); a review of existing statutory and judicial approaches to posthumous conception; and a discussion of the future of assisted reproduction.

Should you read this article? I suffer from acute marginalia. I’ve made notes and check marks on just about every page of Prof. Carpenter’s article. His masterly work should be of interest to everyone, except, perhaps, for the fellow whose will provided, “Believing as I do in reincarnation, I direct that my estate be held in trust pending my return to this earth.”