Procreation After Passing: Balancing Interests in Levirate Marriage and Posthumous Reproduction

(Excerpt) After the heart-wrenching death of a partner, a child, or a family member, it is difficult for those left behind to imagine how to bring their loved one with them into the future. Memories fade, people move on with their lives, and it seems almost inevitable that the dead will be left behind, static. For some, especially those whose loved one died early in life, posthumous reproduction can seem like a way to keep the deceased alive. With relatively new technology and a myriad of associated ethical concerns, however, society, courts, and individuals struggle to determine who should have access to this solution. This Note explores the complex legal and ethical considerations surrounding posthumous reproduction, with a special emphasis on how the biblical commandment of levirate marriage can inform this debate. Part I introduces the technological capabilities of posthumous reproduction and examines the surrounding legal landscape, particularly focusing on the critical role of the decedent’s consent in United States jurisprudence. It also discusses alternative ethical frameworks that may be used when evaluating requests for posthumous reproduction. Part II delves into the ancient practice of levirate marriage from the Hebrew Bible, providing a historical context for understanding reproductive continuity and family legacy. Part III offers a comparative analysis, drawing parallels between levirate marriage and modern posthumous reproduction, challenging the current U.S. legal approach that narrowly focuses on the decedent’s explicit consent.