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Hastings Law Journal

Abstract

In 1993 California courts considered a case of first impression in America: whether a man has the right to bequeath his sperm for the purpose of reproduction after his death. Hecht v. Superior Court (Kane) established that a man's "decision- making authority" over the use of his sperm for procreation suffices to constitute a property interest under California law. Accordingly, a man may direct the disposition of his frozen semen after his death and that semen may be used to father a child. While Hecht received a warm welcome from men's rights groups and bioethics scholars, criticism focused on the social ramifications of procreation after death, ranging from dire warnings of a "generation of sperm bank orphans" to the concern about emotional burdens that posthumous conception may impose on a child.

In her Note, the author assumes that some men will want to exercise their right to bequeath sperm and attempts to introduce paternal responsibility into the new procreative context established by Hecht. If, as the court acknowledged in Hecht, sperm is a unique type of property because of its potential for human life, it is reasonable for the state to attach special responsibilities and consequences to a bequest of such property in order to protect the rights and welfare of the resulting human life. This Note proposes a variety of guidelines for new legislation that attempt to provide for the posthumously conceived child without impacting the established legislative scheme beyond tolerable limits.

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