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Should a child born from frozen sperm inherit from his father’s estate?

It’s a question Maryland law can’t answer just yet.

But that could change soon, as two bills to govern the posthumous use of donated eggs and sperm wind their way through the General Assembly.

“Technology is way ahead of public policy in Maryland,” said Sen. Delores G. Kelley (D-Dist. 10) of Randallstown, lead sponsor of the legislation.

In recent years, legal challenges involving children conceived posthumously have centered on either inheritance or Social Security benefits, according to a state legislative analyst.

On Monday, a Florida woman argued before the U.S. Supreme Court that twins born from her husband’s banked sperm after he died of cancer should be eligible for Social Security survivor benefits.

The Social Security Administration considers a person’s eligibility to receive child survivor benefits by looking at whether the inheritance is possible under state law, said Eric D. Miller, assistant to the solicitor general of the Justice Department, during the court hearing Monday.

In Maryland, no state law or regulation addresses the posthumous use of donor sperm and eggs.

“The kids do not have any recourse right now,” said Del. Joseline Pena-Melnyk (D-Dist. 21) of College Park, who introduced the bill in the House.

During Monday’s hearing, Supreme Court justices underscored how important clear state law was to guide how the federal government should act in such circumstances.

“Every state has a dozen different variations,” Justice Stephen Breyer said. “It’s a very complicated subject.”

Reliance on state law, however, could lead to different decisions based on where the child lives.

Maryland’s proposed law would allow a child conceived within two years of the donor’s death to inherit. Laws in other states allow inheritance if the child is born within five years, and still other states prohibit inheritance of such children altogether, Kelley said.

Maryland also would require a written agreement for the egg or sperm donation and an acknowledgement by the donor that they want to be the parent of the child and allow that child to inherit from their estate.

Similar legislation, which would have required written consent for the use of frozen sperm, eggs or embryos, was introduced in 2001 and 2003, but the bills did not become law.

Another more far-reaching bill introduced by Kelley to create laws governing assisted reproduction died in committee this year. She plans to reintroduce the legislation next year, Kelley said Thursday.

dgaines@gazette.net