One recurrent question here has been whether children conceived after the death of a genetic parent can received social security benefits ordinarily available to a surviving child. Last year the Supreme Court made clear that the answer depends on state law. Entitlement to benefits does not spring from the fact of a genetic relationship but instead turns on whether the child would be considered an heir under the law of the state.
This means, of course, that the treatment of posthumously conceived children will vary depending on what state their deceased parent was living in at the time he/she (but usually he) died. This might seem problematic but perhaps it is no more problematic than the fact that whether the posthumously conceived child will be recognized as an heir also varies. It’s just one more instance of the patchwork-quilt-like nature of family law in the US. And in this instance, if uniformity were really important it could be changed by having the US Congress enact a new law governing social security benefits. I’m not up on this but would guess that is very unlikely to occur anytime soon.
Anyway, let’s return to that point about how eligibility for social security benefits will depend on whether a posthumously conceived child is recognized as an heir. The Supreme Court of Michigan has just said that the answer there is “no.”
Pamela and Jeffery Mattison were a married couple. In 1997 they had some of Jeffery’s sperm frozen before he underwent chemotherapy. At the very least, the idea was to allow them to create children using Jeffery’s sperm even if the chemotherapy damaged his sperm. In October, 2000, the couple began the IVF process. To begin with, Pamela underwent daily injections that promoted superovulation. The next step would have been to harvest the eggs and create embryos, which might have been for immediate use or might have been frozen. (I think in 2000 freezing the eggs alone was not feasible.)
Sadly, Jeffery died unexpectedly on January 18, 2001, before the eggs had been retrieved. They were retrieved ten days later–on January 28, 2001. These eggs were fertilized and transferred to Pamela’s uterus and she on January 30 and she gave birth to twins on October 8, 2001.
Early on in this saga, sometime around 1997 or 1998, Jeffery executed a general power of attorney in favor of Pamela. This gave her authority over a wide range of decisions. It included
‘the authority to “take any and all action necessary pertaining to any sperm or embryos [Jeffery] may have stored including their implantation or termination.”’
Opinion at 3.
The Michigan Supreme Court was asked to determine whether, given these facts, the twins would be recognized under Michigan law as heirs of Jeffery had he died without a will. It concluded they would not.
This result is dictated by the court’s interpretation of Michigan law. As the court summarizes that law
there are two groups of people relevant to this case that may acquire intestate inheritance rights: (1) descendants alive at the moment of the decedent’s death who live more than 120 hours immediately following the decedent’s death and (2) descendants in gestation at the time of the decedent’s death who live 120 hours after birth.
Opinion at 7. Given this law, the conclusion is fairly obvious. There’s no theory on which you can argue that as-yet-unconceived children are either alive or in gestation. (In fact, since descendants in gestation are covered in 2), I think you have to conclude that descendants are not considered to be alive while in gestation.)
There’s a concurrence lamenting the state of Michigan law and urging the legislature to take steps to change it. Certainly the legislature can do that. The question, though, is what exactly it is the legislature ought to do? There are several factors in this case that make it appealing, but when you enact legislation it applies generally to all comers.
So what facts would be critical? These children were conceived within two weeks of Jeffery’s death and so surely this would fall within any time period a legislature might choose. Two years is a common choice. But the idea of some time period is one common restriction that seems to me necessary.
Then there’s a question about stated intent. You could require much clearer intent than the general power of attorney here supplies. I don’t think you could require someone to use the sperm, of course. But you could make it clear that it was the intention of the decedent to have the material used for a child in a particular time period. A good idea?
The concurring opinion ends with a chart (Table 1) that summarizes the approaches in use among the states. I haven’t had time to look at it and work out what each option is, but it seems to suggest that there is little consensus at least thus far. Which tells me the problem will remain an active one for some time to come.