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Massachusetts grants inheritance rights to children conceived posthumously.

Two children conceived with the sperm of their deceased father can enjoy inheritance rights, the Massachusetts Supreme Judicial Court ruled in a unanimous decision. (Woodward v. Comm'r of Soc. Sec., 760 N.E.2d 257 (Mass. 2002).)

"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 ... to the same rights and protections of the law' as children conceived before death," wrote Judge Margaret Marshall for a seven-judge panel.

In March 2000, the New Jersey Superior Court Chancery Division heard a similar case in which twin girls had been conceived by in vitro fertilization and born 18 months after their father's death. That court declared that the girls were their father's legal heirs under state intestate laws. (In re Estate of William d. Kolacy, 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000).) The recent Massachusetts case, however, is the first time that a court of last resort has considered the inheritance rights of posthumously conceived children.

"As [assistive reproductive] 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," wrote Marshall. "The questions present in this case cry out for lengthy, careful examination outside the adversary process.... They demand a comprehensive response reflecting the considered will of the people."

The Supreme Judicial Court concluded that a child resulting from posthumous conception may enjoy inheritance rights in certain limited circumstances: The surviving parent must prove that the child is the biological child of the deceased parent and that the decedent clearly and unequivocally consented to posthumous conception and agreed to support the child.

"This two-fold consent requirement," wrote Marshall, "arises from the nature of alternative reproduction itself." She said that harvesting a man's sperm for his spouse to use indicates "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."

She continued, "Uncertainty as to consent may be compounded by the fact that medicinally preserved semen can remain viable for up to 10 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."

The Woodward twins were born in October 1995, two years after their father, Warren, died. Their parents had harvested Warren's sperm in 1993, when they learned that chemotherapy treatment for his leukemia might leave him sterile and that a bone marrow transplant could have fatal complications. Sixteen months after Warren lost his battle with cancer, his wife, Lauren, conceived the twins using his frozen sperm.

In January 1996, the Social Security Administration--and later an administrative law judge--denied the twins survivor benefits because, they said, Lauren had not established that the girls were Warren's natural children. Lauren filed an appeal with the U.S. District Court for the District of Massachusetts, asking it to reverse the ruling. The court certified a question to the Supreme Judicial Court, asking it to determine whether posthumously conceived children can be legal heirs.

Lauren's suit claimed that such children have a genetic connection with the deceased parent so they are entitled to the same inheritance rights as siblings born before the parent's death. The government countered that such children are not "in being" when the parent dies, so they are not legal children and have no inheritance rights.

The state high court disagreed with both parties, concluding that the question must be resolved on a case-by-case basis. "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," Marshall wrote.

She noted that a case the court decided in 1834 established that a child who was in utero when a parent died was considered "in being" at the time of the parent's death. (Hall v. Hancock, 32 Mass. (15 Pick.) 255 (1834).) Two years later, the Massachusetts legislature added a provision to the intestacy statute, granting inheritance rights to children born after their fathers' deaths.

The provision had been drafted with the assumption that conception occurred before the fathers' deaths; the legislature could not have foreseen a need to distinguish between children born posthumously and those conceived posthumously.

Marshall noted that the provision has not been amended for 165 years and that "posthumous reproduction can occur under a variety of conditions that may conflict with the purposes of intestacy law."

She wrote that some assistive reproductive technologies that enable posthumous reproduction have been widely known and practiced for several decades and that during that time, the state legislature has not tried to restrict posthumously conceived children from inheriting an intestate estate. Marshall also noted that the legislature has been supportive of assistive reproductive technologies.

"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," she wrote. The court could not accept "as a matter of law that all posthumously conceived children are automatically barred from [inheriting] their deceased parent's intestate estate."

Thomas Fallon, an attorney in Beverly, Massachusetts, represented Lauren. "We looked at our case from the standpoint that the Social Security Administration was trying to discriminate against the children based on the circumstances and timing of their birth," he said. "We're pleased that the decision recognized that they are children nonetheless."
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Author:Reichert, Jennifer L.
Geographic Code:1U1MA
Date:Mar 1, 2002
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