An Illegitimate Child

January 27, 1995|By ELLEN GOODMAN

Boston -- The lawmakers of Louisiana never planned for the parentage of Judith Hart. When they wrote the laws of legitimacy, any child born to a widow a year after her husband's death would have been cause for scandal, not for celebration.

But technology has raced ahead of their law. Today when men can deposit their sperm for safekeeping in a bank before they go off to war or to do battle against illness, Judith Hart's origins do not seem so strange.

In 1990, when Ed Hart was diagnosed with cancer of the esophagus, he had every wish to live. Before he began the chemotherapy that would leave him sterile, he put his and his wife's hopes for children in a sperm bank in New Orleans.

To this day, Nancy Hart can remember the exact moment, the exact bend in the highway, when her husband talked about what jTC to do if he didn't survive. He said, ''There will always be a child for you.''

When this widow teacher became pregnant and Judith was born, Nancy felt as if she had cheated death. ''I have always thought that death was so final,'' she said. ''There are no deals to be made, you can't fix it. This time I thought, well, death scored one point and we scored one, too.''

It never occurred to this mother that the state would consider her baby illegitimate. After all, Ed Hart's sperm was the genetic inheritance he left to his wife. Judith was both the legacy and the heiress.

But the state declared her fatherless and therefore the Social Security Administration turned down her application for

survivor's benefits of $700 a month. The genes said yes, but the state said no. Judith wasn't Ed's baby.

And so Nancy Hart has filed a suit challenging the laws that deny Judith the right to be her father's legal child and heir. Nancy has done it more for the name than for the money. With the aid of the Center for Reproductive Law and Policy, she has begun a landmark suit to proclaim the legitimacy of a child conceived after her father's death.

I confess that I have had feelings -- stirred, if not exactly mixed -- about deliberately reproducing children whose only contact with their parent is through the genes. I was appalled when a California man, William Everett Kane, left 15 vials of frozen sperm to his girlfriend before he committed suicide. I was outraged when 14 San Quentin inmates on death row sued to have their sperm preserved for insemination with willing women.

There is an obsession these days with genes, eggs, sperm, with nature rather than nurture. The vision of a genetic legacy of sperm frozen in some bank is unsettling. In Italy, a baby was born this month with the egg of her dead mother, the sperm of her father and the womb of her father's sister.

In many ways, we should discourage the idea of building a future from the grave. Discourage those who would achieve genetic immortality by leaving their reproductive tissue behind. An egg or a vial of sperm may seem like a gift to one surviving partner and feel like a moral obligation, even a burden, to another.

At the same time, I understand the human impulse to ''cheat death.'' I understand why some soldiers who went off to the Persian Gulf War left could-be children behind. And I surely understand why a cancer patient, hoping for recovery after treatment that leaves him sterile, would bank away his future.

But in this complex, emotional and ethical world of reproductive technology, the story of the Harts is a relatively simple one. In Nancy Hart's words, ''All I know is that I had a loving relationship with a husband. We were married. We wanted children. He had the audacity to die.''

If Ed Hart had gone into remission, if Nancy had been inseminated with the sperm while he was alive, no state would question the daughter's status. The baby would be his survivor.

Instead we have biology telling us one thing and the law another. By every genetic measure, by every DNA yardstick, Judith Hart is her father's biological child. Only in the eyes of the law is she the illegitimate child of an unwed mother.

When the law gets this far out of touch with reality, it's the law that has to change. It must change now in sync with the new generation of biological issues. That new generation comes with a startling name tag: Judith Hart, Child of a Post-Mortem Conception.

8, Ellen Goodman is a syndicated columnist.

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