Evaluating the Constitutionality of Marital Status Classifications in the Regulation of Posthumous Reproduction and Postmortem Sperm Retrieval

In Eisenstadt v. Baird, the Supreme Court held that a state law prohibiting the provision of contraceptives to unmarried persons violated the Fourteenth Amendment’s rational basis test because of the disparate treatment it afforded to married and unmarried individuals. Eisenstadt stands for an individual’s right to make their own procreative decisions, free from governmental intrusions which impose arbitrary classifications on privacy and freedom. This Note focuses on posthumous reproduction and, more specifically, postmortem sperm retrieval: the process of using a deceased male’s frozen sperm after his death to produce his biological children at the request of his spouse or intimate partner. It provides a survey of judicial decisions relating to assisted reproductive technology, posthumous reproduction, and the constitutional right to privacy as it relates to procreative decision-making, as well as model statutes, state laws, and institutional guidelines that seek to regulate posthumous reproduction. Ultimately, this Note argues that judicial decisions, legislation, and medical facility regulations or policies that prohibit unmarried partners from posthumously reproducing with their deceased partner’s gametes on the basis of their marital status are unconstitutionally discriminatory