Kort Linden
Business Law
Professor Craig P. Ehrlich
10/29/07
Law and the Children Born of Technology
Imagine a husband and wife, and the husband is dying of leukemia. Before undergoing radiation and subsequently dying, he preserves sperm for later use. After his death, the wife proceeds to have a child through artificial insemination. We call this posthumous conception. When the wife applies for social security survivor benefits for her child, she is denied. This is a true life scenario, and when the rights of posthumously conceived children arise, the courts have an interesting legal problem. Currently, most state and national statutes and legislation are inadequate to deal with these issues which just a few decades ago were unforeseeable. In order to better understand the entitlements and rights of posthumously conceived children, we are going to take a look at a four legal cases that have set precedents in the area. Since only six states currently have statutes for posthumously conceived children, we have to consider what the courts look at to resolve such issues especially when there is no legislation in place. Finally, we will consider the legislative actions being taken to deal with the rights of posthumously conceived children.
When a state looks at the rights and entitlements of posthumous children, first it looks to the laws that govern those rights. Each state has jurisdiction over how inheritance is pasted to its posthumously conceived children, and most states have their own statute regarding posthumously born children or at least intestate laws. We have to be careful to differentiate between posthumously conceived and posthumously born children. Posthumously born children are conceived before the father dies and are born after he dies. On the other hand, posthumously conceived children are conceived after the death of one or both parents through the use of cryogenically preserved sperm and/or embryos. Even though the statutes used to determine the rights of posthumously conceived children were originally written for posthumously born children, when debates over inheritance arise, courts look to these statutes to resolve the issue.
The first and oldest case we are going to examine is the matter of the estate of William J. Kolacy, deceased. The plaintiff (the wife) wanted declaration that her twins are rightful heirs to their father who died intestate. The twins are residents of New Jersey, and were conceived after the death of their father. In this case the State had no statute for posthumously conceived children, but it did have one for posthumously born children. Consequently, the court ruled that the twins were rightful heirs because their father showed intent to have these children posthumously by depositing his sperm for later use, and because there was a statute for after born heirs (though not specifically for posthumously conceived children). In deciding if the current statute was relevant to the plaintiff, the court ruled simply that the New Jersey statute ( § 3B:5-8. After born heirs: An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.) did not bar declaring the children as heirs. Considering the fact that Kolacy did not have anything to pass on to his children, it only had relevance “upon property rights as they evolve over a period of time” (Scott 12). The New Jersey court further used a four-pronged fairness approach which was later used in a case where the statute was less clear (Woodward V. Social Security Administration). Since this approach is better explained by another case, Woodward V. Social Security Administration, I will reserve it for later explanation.
Even though the State ruled in favor of the plaintiff, the real problems began when the plaintiff sought social security survivor benefits. It is important to note that the social security administration only has to follow judgments declared by state supreme courts. Kolacy’s declaration was not done in the supreme court of New Jersey. The New Jersey court said that the SSA had federal jurisdiction over the matter, though the SSA has to refer to state statutes regardless. The SSA denied the children benefits contending that they are not children of a deceased worker, even though the state court ruled they were heirs under the State’s intestate laws. The SSA did this on the grounds that the children were not living dependants of the father while he was alive.
To better understand why the N.J. court declared the twins rightful heirs, let’s take a look at Woodward V. Social Security Administration. The circumstances in this case were almost exactly the same except they occurred in the State of Massachusetts. After being denied declaration of rights by the lower courts, the case eventually made it to the Massachusetts Supreme Judicial court. Again, the court ruled that the children were entitled to inheritance because the state statute did not specifically say that posthumous children must be in existence at the time of death. The analysis of the statute is deceptively simple and stretches the meaning especially considering that the only issue is that the statute does not differentiate between being in the womb at the time of death and being conceived after death. Also, when the statute was written, the writers were not even aware of posthumous conception. Considering what a stretch this ruling was, let’s look at the process invented in the Kolacy case that was used to construe the conclusions the court reached.
The first order of business when analyzing whether or not the posthumously conceived children are heirs is to determine if they are biologically related to the surviving parent (Scott 10). Second, the decedent must have consented in writing to have posthumous conception and have shown intent to support the child after death. Third, in the absence of documentation, the surviving parent must prove that the father consented to posthumous conception and the intent to support the resulting child (10). And finally, as a catch all, the ruling cannot interfere with the “administrative goals of legislature” (10).
The court’s main opinion was that children who are posthumously conceived should have the same rights as any other child, and that intestate laws are there to protect the rights and entitlements of surviving children. The only probable is that this fails to consider the rights and entitlements of children who were conceived while both parents were alive. Thus, had the surviving parent had preexisting children, the court might have ruled differently. Regardless, the court left this issue hanging, and until this problem comes to court in the future, it remains hanging. Another issue arose in a more recent case that resulted in a different verdict.
Let’s considerer the case of Christine C. Eng Khabbaz, by and through her mother and next friend, Donna M. ENG v. Commissioner Social Security Administration in which there was no statute for posthumously born children. In this case, the supreme court of New Hampshire ruled that “surviving issue” as used in RSA 561:1 could not include posthumously conceived children because they would have had to have been “surviving” meaning alive at the time of death of the decedent. But, this is just taking the exact meaning of a statute which is painfully inadequate to deal with the legal issue at hand. Surly the word issue also means “all lawful lineal descendents”. But essentially, the court decided it need not apply the four pronged approach used in Woodward and Kolacy because in their view, the statute did not provide rights to posthumously conceived children. This is unfair to the decedent who died intestate because the object of intestate laws is to protect the interest of the decedent. And if one simply takes the statute at face value and does not try to construe the true aim of that statute, is that not deferring justice? The other two cases took great thought to determine the true meaning of their respective statutes. They were not just taken at face value, or “plain meaning” as the overview of this case states. In the Woodward case it was established that “[W]hether 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 parents” (Broderick 1). I think the New Hampshire Supreme Court chose to set the precedent as such so that “the states interest in orderly administration of estates” would not be impeded in the future (1).
As you can see, the law as it stands is inadequate to deal with the issue of posthumously conceived children. In this inconsistent legal environment, it is advised that the parents use a will. This is best illustrated in the matter of among Martin B., as Grantor, and Martin B., et al., as trustees. In this case the will did not expressly provide for posthumously conceived children, so the trustees asked the surrogate's court of New York, New York county to decide if the terms “issue” and “descendants” includes posthumously conceived children. Though the court could not determine if the grantor had intended to include children who were born after the grantor’s son’s death, the court ruled that since the grantor intended for inheritance to go to all members of his bloodline the child in question was entitled to his share. Obviously a will is the best provision to take when the possibility of posthumous conception may occur, but not everyone can plan ahead.
For instance, in one case, a woman removed the semen from her husband’s body the day after his death and proceeded with artificial insemination. Or, consider the case when a husband and wife both died on a plane, and someone had a baby using their embryos and sperm. With so many possibilities in the field of posthumous conception, planning cannot always be foreseen as a need. Consequently, legislation needs to be in place to deal with the rights of these children. Currently only six states have statutes in place. Two of these states have codified the Unified Parentage Act, which basically states that in the case of a posthumously conceived child whose parent dies intestate, the child is not a legal heir. This is an easy way of dealing with the issue, and Louisiana has taken it even further. Louisiana has expressly denied the rights of posthumously conceived children. The child has no entitlements even if the parent died with a will that provided inheritance. It is taking it too far when a state prohibits the parents right to provide for his or her child. Certainly there is a balance. I would suggest that if a parent showed intent to provide for his or her child posthumously then that child deserves his or her own share. In a world that is constantly evolving socially, economically, and technologically, the law is having a hard time keeping up. However, when a parent is inhibited from undoubtedly providing for his or her own children, hopefully legislation will soon follow.
Works Cited
Broderick, C.J. “Christine C. Eng Khabbaz, by and through her mother and next friend, Donna M Eng v. Commissioner, Social Security Administration” 930 A.2d 1180 Lexis Nexis Academic. 16 Oct. 2007.
“In the Matter of an Application to Construe the Terms "Issue" and "Descendants" under Agreements Dated December 31, 1969, among Martin B., as Grantor, and Martin B., et al., as Trustees.” 17 Misc. 3d 198. Lexis Nexis Academic. 16 Oct. 2007.
Scott, Margaret W. "A Look At the Rights and Entitlements of Posthumously Concieved Children: No Surefire Way to Tame the Reproductive Wild West." Emory Law Review 52 (2003): 1-45. Lexis Nexis Academic. 18 Oct. 2007.
Stanton A.J.S.C “In the matter of the estate of William J Kolacy, deceased.” 753 A.2d 1257. Lexis Nexis Academic. 18 Oct. 2007.
“Woodward v. Commissioner of Social Security” 760 N.E.2d 257. Lexis Nexis Academic. 18 Oct. 2007.
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