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Embryos and Cloning

Brief - Child conceived after Parent's Death is Legal Heir - Woodward ex rel. Estate of Woodward v. Commissioner of Social Sec., 435 Mass. 536, --- N.E.2d ----, 2002 WL 4289 (Mass. 2002)

This case raises the issue of whether children conceived after the death of a biological parent are the heirs of that parent.  Plaintiff was impregnated with the sperm of her deceased husband and gave birth to twin daughters.  (Her husband had banked sperm before undergoing treatment for leukemia, which eventually killed him.)  Plaintiff filed for social security survivor benefits for the children.  The Social Security Administration denied the benefits, arguing that the children where not heirs under Massachusetts law.  Plaintiff sued in federal court contesting this decision.  Since social security survivor benefits are determined by applicable state law, the federal court asked the Supreme Court of Massachusetts for an advisory opinion as to whether the children were heirs under Massachusetts law:

"If a married man and woman arrange for sperm to be withdrawn from the husband for the purpose of artificially impregnating the wife, and the woman is impregnated with that sperm after the man, her husband, has died, will children resulting from such pregnancy enjoy the inheritance rights of natural children under Massachusetts' law of intestate succession?"

The court responded:

"We answer the certified question as follows: In certain limited circumstances, a child resulting from posthumous reproduction may enjoy the inheritance rights of "issue" under the Massachusetts intestacy statute. These limited circumstances exist where, as a threshold matter, the surviving parent or the child's other legal representative demonstrates a genetic relationship between the child and the decedent. The survivor or representative must then establish both that the decedent affirmatively consented to posthumous conception and to the support of any resulting child. Even where such circumstances exist, time limitations may preclude commencing a claim for succession rights on behalf of a posthumously conceived child. Because the government has conceded that the timeliness of the wife's paternity action under our intestacy law is irrelevant to her Federal appeal, we do not address that question today."

"The United States District Court judge has not asked us to determine whether the circumstances giving rise to succession rights for posthumously conceived children apply here. In addition, she has removed from our consideration the question whether the paternity judgment obtained by the wife in this case was valid."

The court's caveats reflect some problematic aspects of the case, the most important of which is that the only proof of paternity was the stipulation by the mother, made when she requested a correct of the girls' birth certificates to indicate the name of the father.

Key to the court's analysis was the finding that MA law, unlike some states, does not require that posthumous children be in existence at the time of the parent's death.  This allowed the court to proceed to the policy analysis of whether children conceived after the death of the parent were issue as defined in the MA intestacy laws.

"The question whether posthumously conceived genetic children may enjoy inheritance rights under the intestacy statute implicates three powerful State interests: the best interests of children, the State's interest in the orderly administration of estates, and the reproductive rights of the genetic parent. Our task is to balance and harmonize these interests to effect the Legislature's over-all purposes."

The court had no trouble finding that the right to inherit would benefit the children.  The orderly administration of estates and the reproductive rights of the genetic parent were more problematic.  The problem is exacerbated because death ends the marriage, thus all such children are non-marital children.  If they have rights, then those are not dependent on the mother being married to father, thus there is no limitation in time as to when such children could be conceived.  The sperm could be stored for 50 years, then used to fertilize an egg.  Such children could even become a long term investment scheme - get sperm from a number of men while they are in college, wait to see who leaves a big estate, then conceive children with the sperm of those men to claim a portion of the estate.  At the same time, a blanket limitation on the rights of non-marital children to inherit raise equal protection problems.

In A.Z. v. B.Z., 431 Mass. 150 (2000), the MA Supreme Court addressed a related issue, the disposition of frozen embryos.  In that case the wife wanted to implant embryos frozen during the marriage, arguing that the agreement to allow the implantation survived the divorce.  The court held that absent a clear indication of the germ donor, it would not enforce agreements that resulted in involuntary parenthood.  (See also Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992))  Consistent with this decision, the court found held that:

"After the donor-parent's death, the burden rests with the surviving parent, or the posthumously conceived child's other legal representative, to prove the deceased genetic parent's affirmative consent to both requirements for posthumous parentage: posthumous reproduction and the support of any resulting child."

"This two-fold consent requirement arises from the nature of alternative reproduction itself. It will not always be the case that a person elects to have his or her gametes medically preserved to create "issue" posthumously. A man, for example, may preserve his semen for myriad reasons, including, among others: to reproduce after recovery from medical treatment, to reproduce after an event that leaves him sterile, or to reproduce when his spouse has a genetic disorder or otherwise cannot have or safely bear children. That a man has medically preserved his gametes for use by his spouse thus may indicate only that he wished to reproduce after some contingency while he was alive, and not that he consented to the different circumstance of creating a child after his death. Uncertainty as to consent may be compounded by the fact that medically preserved semen can remain viable for up to ten years after it was first extracted, long after the original decision to preserve the semen has passed and when such changed circumstances as divorce, remarriage, and a second family may have intervened."

This requirement to prove the consent of the deceased means that merely showing the genetic linkage to the deceased is not enough, the plaintiff will have to prove to satisfaction of the federal court that the deceased both wanted to have children and intended to support them.  The certified question did not address this point so the MA Supreme Court did not made a definitive ruling on the sufficiency of the evidence necessary to prove that a posthumously conceived child is a proper heir.  The court did admonish the lower court that allowed the amendment of the birth certificate to show parentage without conducting a factfinding to establish both genetic and legal parentage.

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