A Growing Conflict

Many states have laws that describe what happens when a child is conceived during the term of a marriage but not born until after one of the parents passes away. But what happens when a child is posthumously-conceived? What happens when a child is conceived after the death of one of the parents? The two cases below seem to hint at a growing conflict among the few state courts that have addressed the issue:

  1. In this post a The New York surrogate court was asked the following question: “Are posthumous children conceived using biotechnology “issue” and “descendants” for purposes of being beneficiaries of a trust?” They answered in the affirmative. In In re Martin B. (Sur. Ct. 2007), 841 N.Y.S.2d 207, a wife preserved her husband’s sperm and, several years after his death, used it to conceive two children. Decedent’s father had a trust that allowed portions of his trust’s principal to be distributed to his “issue” and “descendants.” This case was brought after decedent’s death to decide whether the settlor’s son’s posthumous children were qualified beneficiaries of this trust.

    Professor Berry
    writes: “In deciding this issue, the court considered The Restatement of Property. The Restatement provides that a child of assisted reproduction is considered a child of a person who consented to parenthood but was prevented from becoming a parent by death. The court stated that “if an individual considers a child to be his or her own, society through its laws should do so as well.”
  2. This case appears to go the other way… Posted here is the retelling of this story from the Arkansas News Bureau, Jan. 11, 2008 titled: Court: Embryo implanted in mother’s womb after father’s death not an heir: “A child conceived through in vitro fertilization but implanted in his mother’s womb after his father’s death is not automatically considered his father’s heir under Arkansas’ inheritance laws, the state Supreme Court said Thursday in an advisory opinion.The court issued the opinion in response to a request from a federal judge in an Arkansas woman’s lawsuit against the Social Security Administration over its denial of her claim for “child’s insurance benefits.”The Supreme Court noted that the state statute governing intestacy * * * was enacted in 1969, before the technology of in vitro fertilization was developed, and therefore does not address the issue.Because the law predates the technology, “we can definitively say that the General Assembly … did not intend for the statute to permit a child, created though in vitro fertilization and implanted after the father’s death, to inherit under intestate succession,” Justice Paul Danielson wrote.

    Danielson wrote that it is not the court’s role to create law, but he added that “we strongly encourage the General Assembly to revisit the intestacy succession statutes to address the issues involved in the instant case and those that have not but will likely evolve.”

    The full case can be downloaded as a PDF here. The court took the much easier way out by relying on the implicit intent of the general assembly and expressly declined to define the word “conceive.”

Many thanks (again!) to Professor Berry for his wide reach among the various experts in this field. To our great benefit his resources appear to be limitless.

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