Michigan Weighs In On Posthumous Conception–Children Are Not Heirs, No Social Security

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.


9 responses to “Michigan Weighs In On Posthumous Conception–Children Are Not Heirs, No Social Security

  1. i think this is the only way because otherwise there is no reasonable place to draw the line. sperm can be frozen for decades and result in any number of children

    • You are right about the potentially vast number of children stretching over time. The line most typically drawn is a chronological one–two years. (I’m not sure if children have to be born within two years or conceived within two years.) This does effectively limit the number of kids, I think.

      There might be separate reasons to think about why you’d recognize a child conceived after death as an heir and why you’d award that child social security, but the law has tied these together.

      • sure we could draw an arbitrary line in the sand between children conceived before and after two years, but it’s just that- arbitrary. What justifies treating a child conceived after 2 years and a day differently? (Of course the practical effects are that most people will choose to conceive the child within the legally recognized time frame so perhaps it doesn’t really matter?)
        The moment of death is grounded in in an actual reality. Gestation or in deep freeze is a difference grounded in actual reality.

  2. I think we can create a dividing line between heirs in gestation and heirs not yet conceived, based on the right to reproduce, because we can view an heir in gestation as an inevitable heir, assuming no one interferes, because the process has already begun of bringing it to life.

    • I bet the traditional reasoning is that the child who is already conceived at the death of the man was often conceived with no thought that he would die. Thus, there was an expectation that the man would be around. (It’s not always true, but it sometimes is and I bet historically it was commonly true.) By contrast, there is no such expectation with a child conceived after the death of the man, You know with certainty before conception that he won’t be raising that child. I think this difference in what you know/expect could justify different treatment.

      • Right, a marriage ends at death, and marriages have a right to conceive together up until the end, even if they know about a terminal illness that will kill one of them shortly after birth. So it has always been OK for a married man to have sex with his wife the night before going overseas to fight in a war, knowing he may never come back. Indeed sometimes couples would quickly get married before enlisting and that’s OK too.

        But on death, marriages end, and with it the right to conceive offspring. Posthumous conception is not a right, because unmarried conception is not a right. Both should be prohibited, and intentional unmarried conception should be punished with fines and with taking the child away and giving it to some poor Russian orphanage to raise. But that law would be hard to pass, and isn’t part of the Egg and Sperm Civil Union Compromise I’m working on, which leaves donor conception legal for now.

        The Egg and Sperm law i’m trying to get enacted should specify not just unmodified gametes from a man and a woman, but from a living man and woman. (That would be the only thing currently practiced that the Egg and Sperm law would stop.)

        • john the legal right to reproduce without government interference has nothing to do with marriage in the usa so your comment not relevant

          • What legal right to reproduce without government interference? Eisenstadt didn’t say that, it mentioned “unwarranted governmental intrusion” so there must be warranted intrusion, and it also doesn’t say that, once making the decision to bear or beget a child, that the individual doesn’t need to marry someone first to do it. Remember the case was about deciding to prevent pregnancy, not a right to have unmarried sex to achieve pregnancy, that was never even read into the decision at the time. You won’t find anyone who wrote that the decision overturned fornication and marriage and adultery laws. Same with Lawrence, which even described marriage as being about the right to have sexual intercourse (the Virginia court ruled that it legalized adultery, but they were being stupid on purpose I think). And Loving mentions an “insupportable basis” to prohibit them from procreating, implying that there are supportable basis to interfere, such as siblings, etc. You would have to be off your rocker if you think there is a right to procreate with your sibling, right? Well then you accept that it’s not some right people can decide for themselves, and the government can prohibit it. So, actually, your comment is not relevant.

        • I have this whole voice in my head reserved just for your posts – its deep I don’t know when to take you seriously with the whole rights business. Well whether or not a dead guy no longer has the right to reproduce with his living wife is up for debate but a truly dead guy can’t reproduce because all his cells are dead. There is no part of him left on ice. These men are essentially like brain dead I mean they could keep the whole lower half of them alive but just a couple of cells is so much more portable. Just keeping the sperm alive is much more efficient than keeping the whole body or even just the groin frozen.

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