New Technologies, New Problems: The Arkansas Supreme Court Rules Against an Inheritance Claim by a Posthumously-Conceived Child

By JOANNA GROSSMAN
Tuesday, Jan. 22, 2008

Advances in reproductive technology continue to challenge our legal system, which is often slow to catch up. The proper treatment of the posthumously-conceived child - for purposes of inheritance, social security benefits, and other benefits of recognized parent-child relationships - presents a good example.

Under what circumstances, if any, should a child that is conceived after the death of one of its biological parents receive the usual benefits of a parent-child relationship? This is a question that an increasing number of courts have been forced to tackle, given the small but burgeoning number of posthumously-conceived children.

Last week, the Arkansas Supreme Court issued its ruling in a case that presented a new twist: The child claiming survivor benefits was born from an embryo that was created before her father died, but implanted in her mother's uterus after he died. Was this child posthumously conceived - which raises tough questions about her rights - or only posthumously born, in which case all the usual incidents of the parent-child relationship apply?

Equating conception with implantation rather than fertilization, the court ruled against the claim of this child and her mother. In this column, I will consider this ruling against an emerging landscape of similar decisions.

Finley v. Astrue: The Story and the Legal Claim

Amy and Wade Finley married in 1990 and, over the course of a decade, underwent fertility treatments. In 2001, doctors produced 10 embryos utilizing in vitro fertilization (IVF). Two embryos were implanted into Mrs. Finley, but she ultimately miscarried both. Four embryos were frozen for later use. Later that year, Mr. Finley died. About a year after his death, Mrs. Finley had two of the remaining embryos transferred into her uterus, resulting in the birth of a single child in 2003.

Before her child was born, Mrs. Finley obtained a court order stating that the Department of Health must permit her deceased husband's name to be listed on the birth certificate as "father." The order also directed that "all State and Federal Agencies . . . shall uphold the findings of this Court's conclusion of paternity . . . for any and all lawful purposes; and that [the child W.F.] is the legitimate child" of the Finleys.

After the child was born, Mrs. Finley filed a claim for Social Security benefits on behalf of the child and herself - as dependents of a decedent who was "insured" by the Social Security system. She received different rulings at various different administrative levels. Ultimately, the question of eligibility for benefits landed with the Arkansas Supreme Court.

The Relevance of Arkansas Law to Federal Social Security Benefits

The Social Security Act, the federal law that dictates all aspects of the Social Security system, provides that a child is entitled to "child's insurance benefits," if, at the time of a parent's death, he is a "child" of an individual who dies while insured, and is "dependent" upon the insured at the time of the insured's death. (An "insured" for Social Security purposes is simply a wage earner who has paid sufficiently into the Social Security System to be eligible for benefits.)

Who qualifies as a "child"? That is the question here. The Social Security Act provides no definitive or uniform answer. Instead, the Act directs the Social Security Commissioner to apply the rules of intestate succession - those that dictate who inherits when a person dies without a valid will - that are in effect in the state in which the deceased individual lived. In other words, in this case, if a minor would be treated as the decedent's child for inheritance purposes under Arkansas law, then she will be treated as such for federal Social Security purposes.

Because this is a question purely of state law, the federal district court considering Mrs. Finley's claim certified the question of her and her child's eligibility (if the minor is not a "child" for Social Security purposes, then she is not a "mother" for those same purposes) to the Arkansas Supreme Court - the court entitled to give definitive pronouncements about the meaning of Arkansas law.

However, under Arkansas law, whether W.F. qualifies as a child of the deceased Mr. Finley is a complicated question. Mrs. Finley's argument is that W.F. was "conceived" when the embryo was created, which occurred prior to Mr. Finley's death. If she's right, then there is no reason W.F. would not be the "child" for inheritance purposes of Mr. Finley.

American succession law has long provided for children who are conceived prior to a father's death, but born after. It is common either by statute or by caselaw precedent to add on an appropriate period of gestation for any inheritance rule that turns on age or time. The Arkansas Code, for example, specifically provides that "Posthumous descendants of the intestate conceived before his or her death but born thereafter shall inherit in the same manner as if born in the lifetime of the intestate."

The Commissioner's argument, on the other hand, is that W.F. was "conceived" only when the embryo was implanted into his mother's uterus, a year after Mr. Finley's death. If conception occurs with implantation, then W.F.'s legal rights are governed by a much more uncertain and less developed set of principles.

The Law's General Treatment of Posthumously Conceived Children

Posthumously-conceived children are a new legal category, made possible by advances in reproductive technology. The first birth resulting from IVF (known then as the first "test-tube" baby) did not occur until 1978, and the first birth from a frozen embryo did not occur until 1984. Thus, the law has had only 24 years to grapple with a societal change that challenges settled rules of law. This may seem like a long time, but it takes time for the law to catch up with the relatively fast pace of social change.

The legal rules most likely to be implicated by a posthumous conception are those relating to inheritance and survivor benefits, like the rules of the Social Security system. Indeed, nearly all the lawsuits that have been filed involve either inheritance or survivor benefits.

A lag in time between death and a subsequent child's birth does present practical challenges, particularly as the possible length of time between death and a conception is only increasing. Today, experts predict a frozen sperm sample could last as long as ten years; perhaps an embryo, too. Cryo-preserved eggs seem not to have as long a shelf life, but conception after a mother's death is possible, too.

Estates are administered and closed within a relatively short period of time. Would they have to be held open in case children with inheritance rights were someday subsequently conceived? Would estate shares that had already been distributed be called back for reallocation if that occurred? Would surviving spouses conceive more children simply to garner control over a greater share of the decedent spouse's estate?

Social Security benefits, in contrast, do not present the same complications. A "child" could claim benefits on a deceased parent's account many years later without ruffling the system's placid waters. Because Social Security benefits are not drawn from individualized accounts, no one else's money would be held hostage waiting for the possible claim by posthumously conceived children. However, in practice, these cases are not any easier to decide. Social Security benefits are granted to a surviving child if and only if the child would be eligible to inherit under state intestacy law. So the difficulties that related to intestate succession by posthumously-conceived children indirectly affect their attempts to collect Social Security benefits.

How Other States Have Confronted the Issue of Posthumously-Conceived Children

A handful of states have taken proactive measures to regulate the legal rights of posthumously-conceived children. Five states explicitly permit these children to inherit if the deceased individual left written consent to become a parent; a sixth requires consent and a time lag of fewer than three years. But at least two states have taken the opposite approach - prohibiting posthumously conceived children from benefiting in any way from the property or status of the deceased parent.

In most states, however, there is no statute regulating the rights of posthumously- conceived children. Courts, then, are left to adapt existing statutes to a new situation, or to fashion common law rules that fit the bill. The results of lawsuits in these states have been mixed.

In Woodward v. Commissioner, the Supreme Judicial Court of Massachusetts established a special rule to determine the inheritance rights of posthumously conceived children. The rule requires proof of a genetic link between the decedent and the child and proof that the deceased parent gave consent to posthumous conception. But the Supreme Court in neighboring New Hampshire reached the opposite conclusion, holding in Khabbaz v. Commissioner that a child conceived after her father's death did not qualify as a surviving child for purposes of intestacy law.

In 2004, the U.S. Court of Appeals for the Ninth Circuit held in Gillett-Netting v. Barnhart that twins conceived using IVF after their father's death were his children under Arizona law and, thus, covered by the Social Security Act's surviving child benefit provision. (I have written about this case in a previous column.)

This is the same provision at issue in Finley, though the facts are not identical. In Gillett-Netting, the mother's eggs were not fertilized until after the father died; there was thus no claim that the twins were not posthumously-conceived.

So Finley should present, if anything, a stronger case for benefits than Gillett-Netting because the embryos were already in existence when Mr. Finley died. Yet, the Gillett-Netting twins succeeded in obtained benefits, and W.F. Finley failed to do so. That is because the difference between the two cases is not the point of conception, but the relevant state's law.

The Arkansas Court Proceeds Cautiously

Under Arizona law, as interpreted by the Ninth Circuit, children can inherit through intestate succession from a pre-deceased parent under certain circumstances, one of which is if their parents were married prior to the father's death. All children resulting from a marital union - even when conception and birth follow the dissolution of the marriage by death of one spouse - are entitled to the benefits of the parent-child relationship with each parent.

Under Arkansas law, as interpreted by the court in Finley, posthumously- conceived children cannot qualify as intestate heirs. Period, no exceptions. So Mrs. Finley's only hope was to prove that conception occurred when her eggs were fertilized (during her husband's life), rather than when the embryo was implanted (after his death). This interpretation of Arkansas law is plausible, but not inevitable.

Because the Arkansas legislature has not expressly tackled the problem of posthumous conception, the court had to look at statutes and cases that were related, but not exactly on point. Recall the language from the Arkansas law regarding posthumous children: It extended rules of inheritance to cover "posthumous descendants of the intestate conceived before his or her death but born thereafter." The statute does not define "conceive," but the Finley court held that the legislature, in 1969, surely did not have in mind a definition of conception that was not then possible (or even contemplated). But this type of reasoning is only so convincing. After all, we could draw the opposite inference: that the 1969 legislature surely did not intend to exclude a category of children it did not contemplate would even exist, and thus deprive this not-yet-imagined class of children of potentially urgently needed support.

The Arkansas court mentioned the other cases on this issue (most of which are mentioned above), but noted, fairly, that they do not aid in the interpretation of the Arkansas statute in particular. This is one of the complexities of certain federal laws, like the Social Security Act: They grant rights and impose obligations on citizens of all states, but the exact nature of those rights and obligations often varies by state. Congress often uses terms without defining them - and either expressly or implicitly invites courts to rely on state law to supply the definition. This means that citizens of different states are not treated uniformly by federal laws.

With a cautious opinion, the Arkansas court noted its concern about defining "conceive" in a way that "would implicate many public policy concerns, including, but certainly not limited to, the finality of estates." It thus ended its opinion with an invitation to the legislature: "[W]e 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."

It's Time for Congress to Look at the Situation of Posthumously-Conceived Children, So They Are Not Left Out in the Cold When Parents Die

The Arkansas court may have been right to throw this question to the legislature. But perhaps the throw should be even higher - to the U.S. Congress. There are good reasons to extend surviving child benefits to posthumously-conceived children of deceased wage earners - at least in some circumstances. Moreover, there's no good reason why the Social Security Act should make benefits conditioned on the states' intestate succession rights, when different states can apply very different rules to the same set of facts, and each posthumously conceived child confronts uncertain legal terrain.

If legislation to this effect were passed, then states would be left only to grapple with the challenges to their own inheritance laws - an area squarely within their usual responsibilities.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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