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)
|||THE SUPREME JUDICIAL COURT OF THE STATE OF MASSACHUSETTS
|||January 2, 2002
COMMISSIONER OF SOCIAL SECURITY.
|||Thomas C. Fallon for the plaintiff. George B. Henderson, II, Assistant
United States Attorney (Karen Aviles, of Maryland, with him) for the defendant.
|||Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, &
|||The opinion of the court was delivered by: Marshall, C.J.
|||September 6, 2001.
|||Devise and Legacy, Intestacy, Issue.
|||Certification of a question of law to the Supreme Judicial Court by the
United States District Court for the District of Massachusetts.
|||The United States District Court for the District of Massachusetts has
certified the following question to this court. See S.J.C. Rule 1:03, as
appearing in 382 Mass. 700 (1981).
|||"If a married man and woman arrange for sperm to be withdrawn from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?"
|||We answer the certified question as follows: In certain limited circumstances,
a child*fn2 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. See note 6, infra. We answer only the certified question.
See Canal Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369, 370 n.1
(1990); Cabot Corp. v. Baddour, 394 Mass. 720, 721 (1985).
|||The undisputed facts and relevant procedural history are as follows. In
January, 1993, about three and one-half years after they were married, Lauren
Woodward and Warren Woodward were informed that the husband had leukemia.
At the time, the couple was childless. Advised that the husband's leukemia
treatment might leave him sterile, the Woodwards arranged for a quantity
of the husband's semen to be medically withdrawn and preserved, in a process
commonly known as "sperm banking." The husband then underwent
a bone marrow transplant. The treatment was not successful. The husband
died in October, 1993, and the wife was appointed administratrix of his
|||In October, 1995, the wife gave birth to twin girls. The children were
conceived through artificial insemination using the husband's preserved
semen. In January, 1996, the wife applied for two forms of Social Security
survivor benefits: "child's" benefits under 42 U.S.C. á402(d)(1)
(1994 & Supp. V 1999), and "mother's" benefits under 42 U.S.C.
|||The Social Security Administration (SSA) rejected the wife's claims on
the ground that she had not established that the twins were the husband's
"children" within the meaning of the Act.*fn4
In February, 1996, as she pursued a series of appeals from the SSA decision,
the wife filed a "complaint for correction of birth record" in
the Probate and Family Court against the clerk of the city of Beverly, seeking
to add her deceased husband as the "father" on the twins' birth
certificates. In October, 1996, a judge in the Probate and Family Court
entered a judgment of paternity and an order to amend both birth certificates
declaring the deceased husband to be the children's father. In his judgment
of paternity, the Probate Court judge did not make findings of fact, other
than to state that he "accepts the [s]tipulations of [v]oluntary [a]cknowledgment
of [p]arentage of [the children] .á.á. executed by [the wife] as [m]other,
and [the wife], [a]dministratrix of the [e]state of [the husband], for father."
See G.áL. c.á209C, á11.*fn5
|||The wife presented the judgment of paternity and the amended birth certificates
to the SSA, but the agency remained unpersuaded. A United States administrative
law judge, hearing the wife's claims de novo, concluded, among other things,
that the children did not qualify for benefits because they "are not
entitled to inherit from [the husband] under the Massachusetts intestacy
and paternity laws."*fn6 The appeals
council of the SSA affirmed the administrative law judge's decision, which
thus became the commissioner's final decision for purposes of judicial review.
The wife appealed to the United States District Court for the District of
Massachusetts, seeking a declaratory judgment to reverse the commissioner's
|||The United States District Court judge certified the above question to
this court because "[t]he parties agree that a determination of these
children's rights under the law of Massachusetts is dispositive of the case
and .á.á. no directly applicable Massachusetts precedent exists."
|||We have been asked to determine the inheritance rights under Massachusetts
law of children conceived from the gametes*fn7
of a deceased individual and his or her surviving spouse.*fn8
We have not previously been asked to consider whether our intestacy statute
accords inheritance rights to posthumously conceived genetic children. Nor
has any American court of last resort considered, in a published opinion,
the question of posthumously conceived genetic children's inheritance rights
under other States' intestacy laws.*fn9
|||This case presents a narrow set of circumstances, yet the issues it raises
are far reaching. Because the law regarding the rights of posthumously conceived
children is unsettled, the certified question is understandably broad. Moreover,
the parties have articulated extreme positions. The wife's principal argument
is that, by virtue of their genetic connection with the decedent, posthumously
conceived children must always be permitted to enjoy the inheritance rights
of the deceased parent's children under our law of intestate succession.
The government's principal argument is that, because posthumously conceived
children are not "in being" as of the date of the parent's death,
they are always barred from enjoying such inheritance rights.
|||Neither party's position is tenable. In this developing and relatively
uncharted area of human relations, bright-line rules are not favored unless
the applicable statute requires them. The Massachusetts intestacy statute
does not. Neither the statute's "posthumous children" provision,
see G.áL. c.á190, á8, nor any other provision of our intestacy law limits
the class of posthumous children to those in utero at the time of the decedent's
death. Cf. La. Civ. Code Ann. art.á939 (West 2000) ("A successor must
exist at the death of the decedent").*fn10
On the other hand, with the act of procreation now separated from coitus,
posthumous reproduction can occur under a variety of conditions that may
conflict with the purposes of the intestacy law and implicate other firmly
established State and individual interests. We look to our intestacy law
to resolve these tensions.
|||We begin our analysis with an overview of Massachusetts intestacy law.
In our Commonwealth, the devolution of real and personal property in intestacy
is neither a natural nor a constitutional right. It is a privilege conferred
by statute. Merchants Nat'l Bank v. Merchants Nat'l Bank, 318 Mass. 563,
573 (1945). Our intestacy statute "excludes all rules of law which
might otherwise be operative. It impliedly repealed all pre-existing statutes
and supersedes the common law." Cassidy v. Truscott, 287 Mass. 515,
|||Section 1 of the intestacy statute directs that, if a decedent "leaves
issue," such "issue" will inherit a fixed portion of his
real and personal property, subject to debts and expenses, the rights of
the surviving spouse, and other statutory payments not relevant here. See
G.áL. c.á190, á1.*fn11 To answer the
certified question, then, we must first determine whether the twins are
the "issue" of the husband.
|||The intestacy statute does not define "issue." However, in the
context of intestacy the term "issue" means all lineal (genetic)
descendants, and now includes both marital and non-marital*fn12
descendants. See generally S.M. Dunphy, Probate Law and Practice á8.5, at
123 (2d ed. 1997 & Supp. 2001), and cases cited.*fn13
See also G.áL. c.á4, á7, Sixteenth ("Issue, as applied to the descent
of estates, shall include all the lawful lineal descendants of the ancestor");
Powers v. Wilkinson, 399 Mass. 650, 662 (1987). The term "'[d]escendants'
.á.á. has long been held to mean persons 'who by consanguinity trace their
lineage to the designated ancestor.'" Lockwood v. Adamson, 409 Mass.
325, 329 (1991), quoting Evarts v. Davis, 348 Mass. 487, 489 (1965).
|||Turning to "issue" who are the non-marital children of an intestate,
the intestacy statute treats different classes of non-marital children differently
based on the presumed ease of establishing their consanguinity with the
deceased parent. A non-marital child is presumptively the child of his or
her mother and is entitled by virtue of this presumption to enjoy inheritance
rights as her issue. G.áL. c.á190, á5. However, to enjoy inheritance rights
as the issue of a deceased father, a non-marital child, in the absence of
the father's acknowledgment of paternity or marriage to the mother, must
obtain a judicial determination that he or she is the father's child. G.áL.
c.á190, á7. The general purpose of such a specific adjudication requirement
is to ensure that wealth passes from and to the actual family. See generally
2 T.H. Belknap, Newhall's Settlement of Estates and Fiduciary Law in Massachusetts
á24:2, atá38-42 (5th ed. 1997). We held, at a time when the means for establishing
the paternity of a child were less certain than they are today, that such
disparate treatment between the mother and the father of a child advanced
the Legislature's interests in preventing fraudulent claims against the
estate and in administering estates in an orderly fashion. See Lowell v.
Kowalski, 380 Mass. 663, 668 (1980) ("distinction between rights to
inherit from a natural father and rights to inherit from a natural mother
may properly be based on the greater difficulty of proving paternity than
of proving maternity").
|||The "posthumous children" provision of the intestacy statute,
G.áL. c.á190, á8, is yet another expression of the Legislature's intent
to preserve wealth for consanguineous descendants. That section provides
that "[p]osthumous children shall be considered as living at the death
of their parent." The Legislature, however, has left the term "posthumous
children" undefined. The Massachusetts intestacy statute originally
made no provision for after-born children. See, e.g., St.á1805, c.á90 (approved
Mar. 12, 1806). Then in Hall v. Hancock, 15 Pick. 255 (1834), in the context
of a will contest, this court held that a child who was presumptively in
utero as of the date of the decedent's death was a child "in being"
as of the date of the decedent's death "in all cases where it will
be for the benefit of such child to be so considered." Id. at 257,
258. Two years later, the Legislature enacted the "posthumous children"
provision of the intestacy statute, bringing that devolution mechanism into
conformity with our decision concerning wills. See Rev.áSt.á1836, c.á61,
á13. Despite numerous later amendments to our intestacy laws, the "posthumous
children" provision has remained essentially unchanged for 165 years.*fn14
|||The Massachusetts intestacy statute thus does not contain an express,
affirmative requirement that posthumous children must "be in existence"
as of the date of the decedent's death. The Legislature could surely have
enacted such a provision had it desired to do so. Cf. La. Civ. Code Ann.
art.á939 (effective July 1, 1999) (West 2000) ("A successor must exist
at the death of the decedent"). See also N.D. Cent. Code Ann.á14-18-04
(Michie 1997) ("A person who dies before a conception using that person's
sperm or egg is not a parent of any resulting child born of the conception").
We must therefore determine whether, under our intestacy law, there is any
reason that children conceived after the decedent's death who are the decedent's
direct genetic descendants - that is, children who "by consanguinity
trace their lineage to the designated ancestor" - may not enjoy the
same succession rights as children conceived before the decedent's death
who are the decedent's direct genetic descendants. Lockwood v. Adamson,
|||To answer that question we consider whether and to what extent such children
may take as intestate heirs of the deceased genetic parent consistent with
the purposes of the intestacy law, and not by any assumptions of the common
law. See Cassidy v. Truscott, supra at 520-521. In the absence of express
legislative directives, we construe the Legislature's purposes from statutory
indicia and judicial decisions in a manner that advances the purposes of
the intestacy law. Houghton v. Dickinson, 196 Mass. 389, 391 (1907).
|||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.
|||1. First and foremost we consider the overriding legislative concern to
promote the best interests of children. "The protection of minor children,
most especially those who may be stigmatized by their 'illegitimate' status
.á.á. has been a hallmark of legislative action and of the jurisprudence
of this court." L.W.K. v. E.R.C., 432 Mass. 438, 447-448 (2000). Repeatedly,
forcefully, and unequivocally, the Legislature has expressed its will that
all children be "entitled to the same rights and protections of the
law" regardless of the accidents of their birth. G.áL. c.á209C, á1.
See G.áL. c.á119, á1 ("It is hereby declared to be the policy of the
commonwealth to direct its efforts, first, to the strengthening and encouragement
of family life for the protection and care of children .á.á."). Among
the many rights and protections vouchsafed to all children are rights to
financial support from their parents and their parents' estates. See G.áL.
c.á119A, á1 ("It is the public policy of this commonwealth that dependent
children shall be maintained, as completely as possible, from the resources
of their parents, thereby relieving or avoiding, at least in part, the burden
borne by the citizens of the commonwealth"); G.áL. c.á191, á20 (establishing
inheritance rights for pretermitted children); G.áL. c.á196, á1-3 (permitting
allowances from estate to widows and minor children); G. L. c.á209C, 14
(permitting paternity claims to be commenced prior to birth). See also G.áL.
c.á190, á1-3,á5,á7-8 (intestacy rights).*fn15
|||We also consider that some of the assistive reproductive technologies
that make posthumous reproduction possible have been widely known and practiced
for several decades. See generally Banks, Traditional Concepts and Nontraditional
Conceptions: Social Security Survivor's Benefits for Posthumously Conceived
Children, 32 Loy. L.A. L. Rev. 251, 267-273 (1999). In that time, the Legislature
has not acted to narrow the broad statutory class of posthumous children
to restrict posthumously conceived children from taking in intestacy. Moreover,
the Legislature has in great measure affirmatively supported the assistive
reproductive technologies that are the only means by which these children
can come into being. See G.áL. c.á46, á4B (artificial insemination of married
woman). See also G.áL. c.á175, á47H; G.áL. c.á176A, á8K; G.áL. c.á176B,
á4J; G.áL. c.á176G, á4 (insurance coverage for infertility treatments).
We do not impute to the Legislature the inherently irrational conclusion
that assistive reproductive technologies are to be encouraged while a class
of children who are the fruit of that technology are to have fewer rights
and protections than other children.
|||In short, we cannot, absent express legislative directive, accept the
commissioner's position that the historical context of G.áL. c.á190, á8,
dictates as a matter of law that all posthumously conceived children are
automatically barred from taking under their deceased donor parent's intestate
estate. We have consistently construed statutes to effectuate the Legislature's
overriding purpose to promote the welfare of all children, notwithstanding
restrictive common-law rules to the contrary. See, e.g., L.W.K. v. E.R.C.,
supra at 447; Adoption of Tammy, 416 Mass. 205, 210 (1993); Powers v. Wilkinson,
399 Mass. 650, 661-662 (1987); Powers v. Steele, 394 Mass. 306, 310 (1985);
Hall v. Hancock, 15 Pick. 255 (1834).*fn16
Posthumously conceived children may not come into the world the way the
majority of children do. But they are children nonetheless. We may assume
that the Legislature intended that such children be "entitled,"
in so far as possible, "to the same rights and protections of the law"
as children conceived before death. See G.áL. c.á209C, á1.
|||2. However, in the context of our intestacy laws, the best interests of
the posthumously conceived child, while of great importance, are not in
themselves conclusive. They must be balanced against other important State
interests, not the least of which is the protection of children who are
alive or conceived before the intestate parent's death. In an era in which
serial marriages, serial families, and blended families are not uncommon,
according succession rights under our intestacy laws to posthumously conceived
children may, in a given case, have the potential to pit child against child
and family against family. Any inheritance rights of posthumously conceived
children will reduce the intestate share available to children born prior
to the decedent's death. See G.áL. c.á190, á3á(1). Such considerations,
among others, lead us to examine a second important legislative purpose:
to provide certainty to heirs and creditors by effecting the orderly, prompt,
and accurate administration of intestate estates. See generally S.M. Dunphy,
Probate Law and Practice á8.1, atá115 (2d ed. 1997).
|||The intestacy statute furthers the Legislature's administrative goals
in two principal ways: (1) by requiring certainty of filiation between the
decedent and his issue, and (2) by establishing limitations periods for
the commencement of claims against the intestate estate. In answering the
certified question, we must consider each of these requirements of the intestacy
statute in turn.
|||First, as we have discussed, our intestacy law mandates that, absent the
father's acknowledgment of paternity or marriage to the mother, a non-marital
child must obtain a judicial determination of paternity as a prerequisite
to succeeding to a portion of the father's intestate estate. Both the United
States Supreme Court and this court have long recognized that the State's
strong interest in preventing fraudulent claims justifies certain disparate
classifications among non-marital children based on the relative difficulty
of accurately determining a child's direct lineal ancestor. See Lowell v.
Kowalski, 380 Mass. 663, 668-669 (1980). See also Trimble v. Gordon, 430
U.S. 762, 771 (1977).
|||Because death ends a marriage, see Callow v. Thomas, 322 Mass. 550, 555
(1948); Rawson v. Rawson, 156 Mass. 578, 580 (1892), posthumously conceived
children are always non-marital children. And because the parentage of such
children can be neither acknowledged nor adjudicated prior to the decedent's
death, it follows that, under the intestacy statute, posthumously conceived
children must obtain a judgment of paternity as a necessary prerequisite
to enjoying inheritance rights in the estate of the deceased genetic father.*fn17
Although modern reproductive technologies will increase the possibility
of disputed paternity claims,*fn18 sophisticated
modern testing techniques now make the determination of genetic paternity
accurate and reliable. See generally Note, Implications of DNA Technology
on Posthumous Paternity Determination: Deciding the Facts When Daddy Can't
Give His Opinion, 35 B.C. L. Rev. 747 (1994). See also G.áL. c.á209C, á17.
Posthumous maternity is as uncertain until judicially established as is
posthumous paternity, see note 17, supra, and neither more nor less difficult
to prove. A construction of the intestacy statute that would impose greater
burdens on children posthumously conceived from their father's gametes than
on children posthumously conceived from their mother's gametes would run
afoul of our State and Federal Constitutions, for such classifications would
serve no rational State interest. See Trimble v. Gordon, supra; Lowell v.
|||We now turn to the second way in which the Legislature has met its administrative
goals: the establishment of a limitations period for bringing paternity
claims against the intestate estate. Our discussion of this important goal,
however, is necessarily circumscribed by the procedural posture of this
case and by the terms of the certified question. The certification record
discloses that, after one unsuccessful insemination attempt, the wife conceived
using her deceased husband's sperm approximately sixteen months after his
death. The children were born approximately two years after the husband's
death, and the paternity action (in the form of a "complaint for correction
of birth record") was filed approximately four months after the children's
birth. Both the SSA and the administrative law judge concluded that the
wife and the children were not entitled to Social Security survivor benefits
because, among other things, the paternity actions were not brought within
the one-year period for commencing paternity claims mandated by the intestacy
statute. See G.áL. c.á190, á7.
|||However, in his brief to this court, the commissioner represented that
he had informed the United States District Court judge that the wife "had
been advised that she need not address" the timeliness issue on appeal
in light of a change in Federal regulations. Specifically, the SSA has amended
its regulations to read:
|||"We will not apply any State inheritance law requirement that an
action to establish paternity must be taken within a specified period of
time measured from the worker's death or the child's birth, or that an action
to establish paternity must have been started or completed before the worker's
death.á.á.á." 20 C.F.R. á404.355(b)(2).*fn19
|||We understand the commissioner's representation to be a concession that
the timeliness of the wife's Massachusetts paternity actions is not relevant
to the Federal law question whether the wife's children will be considered
the husband's "natural children" for Social Security benefits
purposes, and that therefore whatever we say on this issue has no bearing
on the wife's Federal action. We also note that the certified question does
not specifically address the limitations matter and that, in their briefs
to this court, the parties referred to the limitations question only peripherally.
See also note 6, supra.
|||Nevertheless, the limitations question is inextricably tied to consideration
of the intestacy statute's administrative goals. In the case of posthumously
conceived children, the application of the one-year limitations period of
G.áL. c.á190, á7 is not clear; it may pose significant burdens on the surviving
parent, and consequently on the child.*fn20,*fn21
It requires, in effect, that the survivor make a decision to bear children
while in the freshness of grieving. It also requires that attempts at conception
succeed quickly. Cf. Commentary, Modern Reproductive Technologies: Legal
Issues Concerning Cryopreservation and Posthumous Conception, 17 J. Legal
Med. 547, 549 (1996) ("It takes an average of seven insemination attempts
over 4.4 menstrual cycles to establish pregnancy"). Because the resolution
of the time constraints question is not required here, it must await the
appropriate case, should one arise.
|||3. Finally, the question certified to us implicates a third important
State interest: to honor the reproductive choices of individuals. We need
not address the wife's argument that her reproductive rights would be infringed
by denying succession rights to her children under our intestacy law. Nothing
in the record even remotely suggests that she was prevented by the State
from choosing to conceive children using her deceased husband's semen. The
husband's reproductive rights are a more complicated matter.
|||In A.Z. v. B.Z., 431 Mass. 150 (2000), we considered certain issues surrounding
the disposition of frozen preembryos. A woman sought to enforce written
agreements between herself and her former husband. The wife argued that
these agreements permitted her to implant frozen preembryos created with
the couple's gametes during the marriage, even in the event of their divorce.
We declined to enforce the agreements. Persuasive to us, among other factors,
was the lack of credible evidence of the husband's "true intention"
regarding the disposition of the frozen preembryos, and the changed family
circumstance resulting from the couple's divorce. See id. at 158-159. Recognizing
that our laws strongly affirm the value of bodily and reproductive integrity,
we held that "forced procreation is not an area amenable to judicial
enforcement." Id. at 160. In short, A.Z. v. B.Z., supra, recognized
that individuals have a protected right to control the use of their gametes.
|||Consonant with the principles identified in A.Z. v. B.Z., supra, a decedent's
silence, or his equivocal indications of a desire to parent posthumously,
"ought not to be construed as consent." See Schiff, Arising from
the Dead: Challenges of Posthumous Procreation, 75 N.C. L. Rev. 901, 951
(1997).*fn22 The prospective donor parent
must clearly and unequivocally consent not only to posthumous reproduction
but also to the support of any resulting child. Cf. Paternity of Cheryl,
434 Mass. 23, 37 (2001) ("The law places on men the burden to consider
carefully the permanent consequences that flow from an acknowledgment of
paternity"). 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. See Banks, Traditional
Concepts and Nontraditional Conceptions: Social Security Survivor's Benefits
for Posthumously Conceived Children, 32 Loy. L.A. L. Rev. 251, 270 (1999).*fn23
|||Such circumstances demonstrate the inadequacy of a rule that would make
the mere genetic tie of the decedent to any posthumously conceived child,
or the decedent's mere election to preserve gametes, sufficient to bind
his intestate estate for the benefit of any posthumously conceived child.
Without evidence that the deceased intestate parent affirmatively consented
(1) to the posthumous reproduction and (2) to support any resulting child,
a court cannot be assured that the intestacy statute's goal of fraud prevention
|||As expressed in our intestacy and paternity laws, sound public policy
dictates the requirements we have outlined above. Legal parentage imposes
substantial obligations on adults for the welfare of children. Where two
adults engage in the act of sexual intercourse, it is a matter of common
sense and logic, expressed in well-established law, to charge them with
parental responsibilities for the child who is the natural, even if unintended,
consequence of their actions. Where conception results from a third-party
medical procedure using a deceased person's gametes, it is entirely consistent
with our laws on children, parentage, and reproductive freedom to place
the burden on the surviving parent (or the posthumously conceived child's
other legal representative) to demonstrate the genetic relationship of the
child to the decedent and that the intestate consented both to reproduce
posthumously and to support any resulting child.
|||The certified question does not require us to specify what proof would
be sufficient to establish a successful claim under our intestacy law on
behalf of a posthumously conceived child. Nor have we been asked to determine
whether the wife has met her burden of proof. The record reveals that the
administrative law judge repeatedly requested that the wife provide objective
corroboration of her claim that the husband consented to father children
after his death.*fn24 The administrative
law judge's opinion indicates that he was willing to consider "additional
declarations or written statements from the decedent's family, [the wife's]
family, financial records or records from the fertility institute that demonstrate
any acknowledgment [of the children] made by [the husband]." Cf. Higgins
v. Ripley, 16 Mass. App. Ct. 928 (1983); Wrenn v. Harris, 503 F. Supp. 223,
226-227 (D. Mass. 1980). Perhaps because the law was unsettled at the time,
the wife's counsel took the position that the paternity judgment and the
birth certificates were sufficient, and that no further evidence was required.
In the wife's Probate Court action, however, the judge held the husband
to be the "father" of the children, but did not make any specific
findings to support that determination. Nor did he determine whether the
husband intended to support the wife's children. Moreover, although a birth
certificate is prima facie evidence of the facts recorded therein, G.áL.
c.á46, á19, under our laws, genetic and legal parentage are not always coterminous.
See G.áL. c. 210 (adoption statute).
|||It is undisputed in this case that the husband is the genetic father of
the wife's children. However, for the reasons stated above, that fact, in
itself, cannot be sufficient to establish that the husband is the children's
legal father for purposes of the devolution and distribution of his intestate
property. In the United States District Court, the wife may come forward
with other evidence as to her husband's consent to posthumously conceive
children. She may come forward with evidence of his consent to support such
children. We do not speculate as to the sufficiency of evidence she may
submit at trial.
|||We feel constrained to comment on the judgment of paternity and the issuance
of the amended birth certificates. The Probate and Family Court judge should
not have entered the paternity judgment, or ordered the husband's name added
to the birth certificates, on the record the mother presented. The mother
sought to establish her deceased husband's paternity of the twins by bringing
a complaint to amend birth records against the clerk of the city of Beverly
(who, according to the judgment of paternity, did not object to the action).
Where an estate is at issue - which will always be the case where a parent
is deceased - notice of the action to establish legal parentage should be
given to every other interested party, including the potential heirs who
would have taken but for the posthumous creation of the children. See Mass.áR.
Civ.áP.á19á(a)á(2), 365 Mass. 765 (1974) (joinder of interested persons);
Mass. R.áDom. Rel.áP.á19 (West 2001) (same); Rodrigues v. Rodrigues, 286
Mass. 77, 83 (1934). See also Sondra S. v. Jay O., 126 Misc. 2d 322, 327-328
(N.Y. Fam. Ct. 1984) (proceeding to establish deceased father's paternity
must be adversary proceeding, with notice given to all interested parties).
In this case, no such notice was given.*fn25
|||The record also discloses that the wife sought to bind the husband's estate
for the benefit of her posthumously conceived children by filing stipulations
of voluntary acknowledgment of parentage executed by herself as mother and
by herself as administratrix of the husband's estate. See G.áL. c.á209C,
á11. The Probate and Family Court judge should not have considered these
stipulations, much less grounded his paternity judgment on them. Neither
the statutory powers granted to administrators, see, e.g., G.áL. c.á195,
á5A, nor the Massachusetts intestacy and paternity laws permit such procedures
to establish paternity. See, e.g., G.áL. c.á209C, á11 (requiring voluntary
acknowledgments of paternity to be signed by both parents).
|||For the second time this term, we have been confronted with novel questions
involving the rights of children born from assistive reproductive technologies.
See Culliton v. Beth Israel Deaconess Med. Ctr., ante 285 (2001). As these
technologies advance, the number of children they produce will continue
to multiply. So, too, will the complex moral, legal, social, and ethical
questions that surround their birth. The questions present in this case
cry out for lengthy, careful examination outside the adversary process,
which can only address the specific circumstances of each controversy that
presents itself. They demand a comprehensive response reflecting the considered
will of the people.
|||In the absence of statutory directives, we have answered the certified
question by identifying and harmonizing the important State interests implicated
therein in a manner that advances the Legislature's over-all purposes. In
so doing, we conclude that limited circumstances may exist, consistent with
the mandates of our Legislature, in which posthumously conceived children
may enjoy the inheritance rights of "issue" under our intestacy
law. 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.
In any action brought to establish such inheritance rights, notice must
be given to all interested parties.
|||The Reporter of Decisions is to furnish attested copies of this opinion
to the clerk of this court. The clerk in turn will transmit one copy, under
the seal of this court, to the clerk of the United States District Court
for the District of Massachusetts, as the answer to the question certified,
and will also transmit a copy to each party.
|||*fn1 Lauren Woodward (wife), on her own behalf as parent and guardian
and on behalf of her minor children, and as administratrix of the estate
of Warren Woodward (husband).
|||*fn2 The term "natural child"
(or "natural children") does not occur in any applicable Massachusetts
statute. It is a term drawn from Federal legislation. See, e.g., 42 U.S.C.
á416(e) (1994) and 20 C.F.R. á404.355 (2001) (defining the term "natural
child"). Our inquiry is directed solely to the language of the applicable
|||*fn3 At the time of his death, the husband
was a fully insured individual under the United States Social Security Act
(Act). Section 402(d)(1) of 42 U.S.C. provides "child's" benefits
to dependent children of deceased parents who die fully insured under the
Act. See 42 U.S.C. á402(d)(1); 20 C.F.R. á404.350. Section 402(g)(1) of
42 U.S.C. provides "mother's" benefits to the widow of an individual
who died fully insured under the Act, if, inter alia, she has care of a
child or children entitled to child's benefits. See 42 U.S.C. á402(g)(1);
20 C.F.R. á404.339 (2001). Thus, the wife's eligibility for Social Security
survivor benefits hinges on her children's eligibility for such benefits.
|||*fn4 The Act defines children, in pertinent
part, as the "child or legally adopted child of an individual."
See 42 U.S.C. á416(e). The term "child" includes "natural
child." See 20 C.F.R. 404.355. The Act also establishes presumptions
of dependency for certain classes of children, as well as other mechanisms
for establishing dependency. As stated in the certification order, the wife's
"appeal centers on only one possible basis for eligibility, which is
that under SSA regulations the children are eligible if they would be treated
as [the husband's] natural children for the disposition of his personal
property under the Massachusetts law of intestate succession. See 42 U.S.C.
402(d)(3) and 416(h)(2)(A); 20 C.F.R. á404.355(a)(1); 20 C.F.R. 404.361(a)."
|||*fn5 The voluntary acknowledgments of
parentage are not part of the certification record before us.
|||*fn6 The administrative law judge reasoned
that the children were not "ascertainable heirs as defined by the intestacy
laws of Massachusetts," because they were neither born nor in utero
at the date of the husband's death and "the statutes and cases contemplated
an ascertainable child, one who had been conceived prior to the father's
death." He also found that the children could not inherit as the husband's
children under Massachusetts intestacy law because the evidence failed to
establish that the husband, before his death, either acknowledged the children
as his own or intended to contribute to their support. See G. L. c.á190,
7. Further, the administrative law judge held that the SSA was not bound
by the judgment of paternity because that judgment "is not only inconsistent
with Massachusetts paternity laws but also constitutes a proceeding to which
the [SSA] was not a party." See Soc. Sec. Rul. 83-37c; Gray v. Richardson,
474 F.2d 1370 (6th Cir. 1973). In her certification order, the United States
District Court judge affirmed that, as a matter of Federal law, the administrative
law judge "was not compelled to give dispositive weight to the Probate
Court judgment." She did not ask us to determine whether the paternity
judgment is "inconsistent with Massachusetts paternity laws,"
as the administrative law judge concluded.
|||*fn7 We use the term "gamete"
here to denote "[a]ny germ cell, whether ovum or spermatozoon."
Stedman's Medical Dictionary 701 (26th ed. 1995).
|||*fn8 Although the certified question
asks us to consider an unsettled question of law concerning the paternity
of children conceived from a deceased male's gametes, we see no principled
reason that our conclusions should not apply equally to children posthumously
conceived from a deceased female's gametes.
|||*fn9 We are aware of only two cases
that have addressed, in varying degrees, the question before us. In Hecht
v. Superior Court, 16 Cal. App. 4th 836 (1993), the California Court of
Appeal considered, among other things, whether a decedent's sperm was "property"
that could be bequeathed to his girl friend. Id. at 847. In answering in
the affirmative, the court noted, in dicta and without elaboration, that,
under the provisions of California's Probate Code, "it is unlikely
that the estate would be subject to claims with respect to any such children"
resulting from insemination of the girl friend with the decedent's sperm.
Id. at 859. In Matter of Estate of Kolacy, 332 N.J. Super. 593 (2000), the
plaintiff brought a declaratory judgment action to have her children, who
were conceived after the death of her husband, declared the intestate heirs
of her deceased husband in order to pursue the children's claims for survivor
benefits with the Social Security Administration. A New Jersey Superior
Court judge held that, in circumstances where the decedent left no estate
and an adjudication of parentage did not unfairly intrude on the rights
of others or cause "serious problems" with the orderly administration
of estates, the children would be entitled to inherit under the State's
intestacy law. Id. at 602.
|||*fn10 The cases relied on by the administrative
law judge do no more than affirm the general common-law rule that heirs
are fixed as of the date of death, see National Shawmut Bank v. Joy, 315
Mass. 457, 467 (1944); Gorey v. Guarente, 303 Mass. 569, 576-577 (1939),
and that children born after death within the probable period of gestation
may inherit as issue of the deceased parent in exception to the general
rule. See Bowen v. Hoxie, 137 Mass. 527, 528-529 (1884). See also Waverley
Trust Co., petitioner, 268 Mass. 181, 183 (1929). Our intestacy statute
supersedes any Massachusetts common law in this area. See note 16, and accompanying
|||*fn11 General Laws c.á190, á2, provides
that the intestate personal property of the deceased shall be divided "among
the persons and in the proportions .á.á. prescribed for the descent of real
property," subject to the limitations discussed above. General Laws
c.á190, á3, governs the distribution of real property to the decedent's
"children" and their "issue," who are preferred takers
over other nonspousal heirs.
|||*fn12 When not quoting directly from
other sources employing different terminology, we shall use the term "non-marital
child" throughout this opinion to describe a child born to parents
who are not legally married to each other. The term "non-marital child"
is less fraught with negative implications than is the traditional language
of "illegitimacy" or "bastardy." As such, the term "non-marital
child" is more closely aligned with the Legislature's commitment to
eradicate distinctions between the rights of children based on the circumstances
|||*fn13 Although by statute and case
law adopted children are also included in the term "issue," our
discussion is limited to consanguineous descendants. In certain express
and very limited circumstances, the Legislature has cut off inheritance
rights of biological children, but only for the purpose of grafting the
children into a new family with parents from whom they can inherit in intestacy
or by will. See G.áL. c.á46, á4B (child born as result of artificial insemination
of wife with husband's consent is legitimate child of marriage); G.áL. c.á210,
á7 (inheritance rights of adopted child).
|||*fn14 See Gen.áSt.á1860, c.á91, á12;
Pub.áSt.á1882, c.á125, á6 (substituting "shall be" for "are"
in posthumous child statute); Rev.áL. c.á133, á6 (1902).
|||*fn15 The provisions of the intestacy
statute regarding paternity have been regularly amended to broaden the class
of non-marital children eligible to succeed from their father's intestate
estate. See Houghton v. Dickinson, 196 Mass. 389, 390-391 (1907). See also
St. 1943, c. 72, á1 (establishing succession rights for non-marital child
whose father's paternity has been successfully adjudicated); St. 1980, c.
396 (establishing succession rights for non-marital child whose father has
|||*fn16 The common-law rule that heirs
are ascertained at the time of the decedent's death has been superseded
and, in any event, has never been applied with rigid inflexibility, even
outside of the context of posthumously born children. See, e.g., Waverley
Trust Co., petitioner, 268 Mass. 181, 183-184 (1929) ("It is not an
inflexible rule that under no circumstances can the heirs of a person be
ascertained as of a date later than that of death").
|||*fn17 It is equally clear that the
intestacy statute requires an adjudication of parentage regardless of whether
the deceased genetic parent was male or female. The presumption of consanguinity
between the non-marital child and his or her mother expressed in G.áL. c.
190, á5 is plainly inapplicable to the circumstances of posthumous reproduction.
Cf. G.áL. c.á209C, á21 (applying provisions of paternity statute "[i]nsofar
as practicable" to disputes regarding maternity). See also G.áL. c.á190,
á7 (referring to c.á209C).
|||*fn18 It is now possible for a child
to be born by means of reproductive technologies in circumstances in which
several people could claim or be claimed to be the child's legal parents:
an egg donor, a sperm donor, a gestational carrier, and one or two people
who are not biologically related to the child but who have arranged for
the contributions of the others and who intend to raise the child. See Shapo,
Matters of Life and Death: Inheritance Consequences of Reproductive Technologies,
25 Hofstra L. Rev. 1091, 1102 (1997).
|||*fn19 The regulation further states:
"If applicable State inheritance law requires a court determination
of paternity, we will not require that you obtain such a determination but
will decide your paternity by using the standard of proof that the State
court would use as the basis for a determination of paternity." 20
C.F.R. á404.355(b)(2). See 20 C.F.R. á404.355(b)(1), which provides, in
pertinent part: "To decide whether you have inheritance rights as the
natural child of the insured, we use the law on inheritance rights that
the State courts would use to decide whether you could inherit a child's
share of the insured's personal property if the insured were to die without
leaving a will."
|||*fn20 The paternity statute permits
paternity actions to be commenced prior to a child's birth, see G.áL. c.á209C,
á14. Thus, a Probate Court judge, in the exercise of general equity jurisdiction
under G.áL. c.á215, á6, may consider a claim to establish paternity of a
posthumously conceived child where such action is commenced during a pregnancy
resulting from the joining of the gametes of the surviving spouse and the
deceased spouse within the time period prescribed by G.áL. c.á190, á7.
|||*fn21 We reject the wife's argument
that a posthumously conceived child may be considered a "creditor"
whose claim has not yet "accrued" within the meaning of G.áL.
c.á197, á13, until after the child's birth. Sectioná13 permits a creditor
"whose right of action shall not accrue within one year after the date
of death of the deceased" to present his or her claims "at any
time before the estate is fully administered." See Flannery v. Flannery,
429 Mass. 55 (1999). Those who take by intestate succession are not "creditors."
Rather, they are the heirs who receive what remains of the estate after
all creditors have been paid.
|||*fn22 No question has arisen in this
case concerning the right of the surviving wife to use the decedent husband's
gametes. Cf.áHecht v. Superior Court, 16 Cal. App. 4th 836 (1993).
|||*fn23 Of course, a man will not always
medically deposit his semen in a sperm bank for the use by a spouse or other
designated person. He may also deposit his semen in a sperm bank, usually
in return for compensation, for use by an anonymous third party or third
parties. See Chester, Freezing the Heir Apparent: A Dialogue on Post-mortem
Conception, Parental Responsibility, and Inheritance, 33 Hous. L. Rev. 967,
977 & n.41 (1996). The sperm donor generally signs a contract relinquishing
all parental rights and responsibilities, "and the majority of states
seem to protect anonymous donors at least from unwanted responsibility for
their offspring." Id . See G.áL. c.á46, á4B. See also R.R. v. M.H.
, 426 Mass. 501, 509 (1998) ("Section 4B does not comment on the rights
and obligations, if any, of the biological father, although inferentially
he has none"). Such protections may reflect widespread consensus that
shielding donors from the responsibilities of legal parentage is necessary
to encourage the socially beneficial practice of sperm donation. It may
also reflect an intention to avoid the myriad complications of probate,
title to property, and fragmentation of the donor's estate that might result
from contrary rules. See generally Shapo, Matters of Life and Death: Inheritance
Consequences of Reproductive Technologies, 25 Hofstra L. Rev. 1091, 1218
|||*fn24 In pertinent part, the factual
record contains a brief affidavit that the wife submitted to the Probate
Court judge in her action to amend the children's birth records, a physician's
letter that was submitted in that action, and a transcript of the wife's
testimony before the administrative law judge. The wife's affidavit attests
only that the husband's sperm was extracted and preserved "because
my husband and I wanted to have children from our union." The two-sentence
notarized physician's letter, addressed to the wife's attorney, was from
the director of Reproductive Endocrinology and Fertility Services of Malden
Hospital. He wrote that, on Februaryá3, 1995, the wife "had a twin
pregnancy" as a result of her insemination with the husband's "frozen/thawed
semen" and that "[w]e were notified that she delivered twins in
October, 1995." Before the administrative law judge the wife testified
only that she and the husband had discussed with doctors whether she would
"be able to have children, [the husband's] children" should the
husband's bone marrow transplant not succeed. At the time, the couple had
been told that the husband's leukemia treatments might render him sterile,
if he survived. She further testified that the husband "agreed"
with her that "if something should happen .á.á. I would still be able
to have his children."
|||*fn25 The wife's counsel asserted
in his brief and at oral argument that the SSA was notified of the wife's
proceeding to establish paternity. The record is clear, however, that the
SSA was formally notified of the wife's Probate Court action three months
after the date of the paternity judgment, and that the SSA was never summonsed
as a party in the Probate Court matter. Moreover, the certification record
contains no submission in the Probate Court that there were no other interested
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