Intestacy (Children of Assisted Reproductive Technology)

AuthorBrowne C. Lewis
Pages237-340
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Chapter Six: Intestacy (Children of Assisted Reproductive Technology)
6.1 Introduction
The availability of assisted reproductive technology has changed the way families are being
formed. It is now possible for a child to have at least six legal parents. Consider the following
scenario. A and B would like to have a child, but they are both infertile. A and B purchase eggs from
C and sperm from D. Then, they hire a surrogate E, a married wo man, to gestate their embryos. A
and B are the intended parents, so they are the legal parents. C and D are the biological parents. In
some jurisdictions, as a gestational surrogate, E, is the legal parent. Since the child is conceived
during the course of the marriage, ′’s husband may be presumed to be the legal father. The law has
not kept paced with the changes that assisted reproductive technology has made to the
determination of paternity and maternity.
In this chapter, we look at the inheritance rights of three classes of children that have
resulted from the use of assisted reproductive technology. The first section examines the rights of
child conceived using the sperm of dead men. These children are referred to as posthumously
conceived children. In this section, we will focus upon the child’s ability to inherit from his dead
father because that has been the subject of most of the litigation. Since it is more difficult to retrieve
eggs from a dead woman, there are no reported cases involving children conceived using the eggs of
a dead women.
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In addition, cases involving the eggs of a dead woman would implicate surrogacy
laws, so the maternity issues that arise are discussed in the section of this chapter that deals with
surrogacy.
The second section of this chapter looks at the ability of children conceived using artificial
insemination to inherit from their fathers. Numerous types of reproductive technology are available
to help infertile couples achieve their dreams of having children. One of the oldest and most
common forms of assisted reproduction is artificial insemination. Couples widely use artificial
insemination because it is the simplest form of assisted reproduction. The popularity of artificial
insemination may also be attributed to the fact that it is affordable and can be safely done without
the benefit of medical personnel. Artificial insemination involves sperm being placed into a woman’s
cervix without sexual intercourse. Thus, the procedure can be done at home using a turkey baster.
The widespread use of artificial insemination may be the reason why most state legislatures that have
enacted statutes dealing with assisted reproduction have focused exclusively on artificial
insemination.
The final section of this chapter explores the inheritance rights of children who are born as
the result of surrogacy agreements. There are two types of surrogacytraditional and gestational. In
a traditional surrogacy arrangement, in essence, the person is purchasing both the eggs and the
services of the surrogate. The person who wishes to become a parent supplies the sperm and the
surrogate does the rest. After the Baby M case, traditional surrogacy fell into disfavor.
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The
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In 2012, an Israeli court gave the parents of a seventeen year old girl who was killed in a car accident t he right to
harvest her eggs. The parent planned to donate the eggs to the girl’s infertile aunt.
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In Baby M, the court held that surrogacy was against public policy. When the surrogate refused to surrender the child,
the court treated the matter like a custody dispute instead of a breach of contract case. The intended mother was not
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jurisdictions that permit and regulate surrogacy have limited it to gestational surrogacy. Under a
gestational surrogacy arrangement, the surrogate provides only the womb. The maternity dispute in
those cases is between the intended mother and the surrogate.
6.2 Posthumously Conceived Children
Heirship is determined at the person’s death. The person’s death is when intestate property
passes by intestacy to the deceased’s heirs. Before the person dies, a potential heir has no property
interest but merely an “expectancy” in the dead person’s intestate estate. The cases discussed in this
section involve the right of posthumously conceived children to inherit from their fathers. The
resolution of this issue is important because the existence of posthumously conceived children has
the potential to impact the distribution of a man’s estate. If the man dies with a validly executed will
leaving his estate to his children, the question becomes whether or not posthumously conceived
children should be included in the definition of “children”. In the event that a man dies without a
will, the question to be resolved is whether or not posthumously conceived children should be
considered heirs under the intestacy system. The legal issues relevant to the discussion are: (1)
Whether the posthumously conceived child should be recognized as a survivor of his or her father
under the state’s intestacy system and (2) Whether the posthumously conceived child should be
given the right to inherit through his or her father.
The issue of posthumous reproduction inheritance rights usually arises in two contexts.
Context One: Facing a life threatening illness or situation, a man has his sperm stored for future use.
After the man becomes sterile, dies or is killed, the woman uses his sperm to conceive his child.
Context Two: A man dies or is killed without storing his sperm. Then, the woman has his sperm
harvested from his body and uses it to conceive his child.
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The result of either context is a child
born years after the death of his or her father. Both scenarios mentioned above lead to the following
two questions: (1) Whether the resulting child should have the opportunity to inherit from his or her
father, and (2) Whether any conditions should be placed on the child’s right to inherit from his or
her father.
When reading the materials in this chapter, you should think about the interests to be
protected. In deciding whether or not to give posthumously conceived children the right to inherit,
the state must strive to protect: (1) the reproductive right of the deceased man; (2) the financial
interests of the posthumously conceived child; (3) the financial interests of the deceased man’s
existing heirs; and (4) the integrity of the probate system.
given standing in the case. The court awarded custody of the case to the man who supplied the sperm after d eciding that
he would make the better parent.
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In 1997, Art Caplan, the Director for Bioethics at the University of Pennsylvania, and several colleagues conduc ted a
study of fertility clinics to find out the number of clinics that had extracted sperm from a deceased man. The results of
the study indicated that the practice of taking sperm from dead men has become more common. Gina Kolata, U ncertain
Area for Doctors: Saving Sperm of Dead Men, The New York Times, www. nytimes .com (May 30, 1997). Media
coverage like this one led to attempts by the government to regulate the process. For example, Roy Goodman, a
Republican New York state senator, introduced a bill that would have regula ted the extraction and preservation of the
sperm of dead men. Under the bill’s mandates, doctors could only remove sperm from dead men who had give n written
permission for the extraction prior to death. The bill was never enacted into la w. See Ian Fisher, Bill Would Govern Use
of Dead Men’s Sperm, nytimes.com (March 7, 1998).
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6.2.1 The Right to Inherit From Fathers
Persons involved in these cases usually have modest means and are not interested in
inheriting from the dead men’s estates. Litigation occurs when the women apply for and are denied
Social Security Survivors’ benefits. The Social Security Act does not include provisions dealing with
posthumously conceived children, so, when determining a child’s eligibility for benefits, the Agency
relies upon the intestacy laws of the state where the man dies. If the child is not considered to be the
man’s heir under the intestacy system, he or she is not eligible for benefits under the Social Security
Act.
Astrue v. Capato ex. Rel. B.N.C., 132 S. Ct. 2021 (2012)
GINSBURG, J., delivered the opinion for a unanimous Court.
Eighteen months after her husband, Robert Capato, died of cancer, respondent Karen Capato gave
birth to twins conceived through in vitro fertilization using her husband’s frozen sperm. Karen
applied for Social Security Survivors benefits for the twins. The Social Security Administration (SSA)
denied her application, and the District Court affirmed. In accord with the SSA’s construction of the
Social Security Act (Act), the court determined that the twins would qualify for benefits only if, as 42
U.S.C. §416(h)(2)(A) specifies, they could inherit from the deceased wage earner under state
intestacy law. The court then found that Robert was domiciled in Florida at his death, and that
under Florida law, posthumously conceived children do not qualify for inheritance through intestate
succession. The Third Circuit reversed. It concluded that, under. §416(e), which defines child to
mean, inter alia, “the child or legally adopted child of an [insured] individual,” the undisputed
biological children of an insured and his widow qualify for survivors benefits without regard to state
intestacy law.
Held: The SSA’s reading is better attuned to the statute’s text and its design to benefit primarily those
supported by the deceased wage earner in his or her lifetime. Moreover, even if the SSA’s
longstanding interpretation is not the only reasonable one, it is at least a permissible construction
entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
104 S.Ct. 2778, 81 L.Ed.2d 694. Pp. 2027 2034.
(a) Congress amended the Act in 1939 to provide that, as relevant here, “[e]very child (as defined in
section 416(e) of this title)” of a deceased insured individual “shall be entitled to a child’s insurance
benefit.” §412(d). Section 416(e), in turn, defines “child” to mean: “(1) the child or legally adopted
child of an individual, (2) a stepchild [under certain circumstances], and (3) ... the grandchild or step
grandchild of an individual or his spouse [under certain conditions].” Unlike § 416(e)(2) and (3), §
416(e)(1) lacks any elaboration of the conditions under which a child qualifies for benefits. Section
416(h)(2)(A), however, further addresses the term “child,” providing: “In determining whether an
applicant is the child or parent of [an] insured individual for purposes of this subchapter, the
Commissioner of Social Security shall apply [the intestacy law of the insured individual’s domiciliary
State].” An applicant who does not meet § 416(h)(2)(A)’s intestacy-law criterion may nonetheless
qualify for benefits under other criteria set forth in §416(h)(2)(B) and (h)(3), but respondent does
not claim eligibility under those other criteria. Regulations promulgated by the SSA closely track. §
416(h)(2) and (3) in defining “[w]ho is the insured’s natural child,” 20 C″R § 404.355. 42 U.S.C. §
416(e) As the SSA reads the statute, 42 U.S.C. § 416(h) governs the meaning of “child” in § 416(e)(1)

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