By Robert F. McStay, J.D., LL.M. candidate
Lauren and Warren Woodward had been married for less than four years when they learned that Warren had leukemia in January 1993. See Woodward v. Commissioner of Social Security, 760 N.E.2d 257, 260 (Mass. 2002). Childless at the time, the couple decided to clinically preserve Warren's sperm because of the possibility that the leukemia treatment could render him sterile. Id. Warren did not survive the treatment and died in October 1993. Id. Approximately two years after Warren's death, Lauren gave birth to twin girls -- conceived through artificial insemination using Warren's preserved semen. Id. Several months later, Ms. Woodward applied for Social Security survivor's benefits for her two children. Id.
The Social Security Administration rejected Ms. Woodward's application for benefits, and her administrative appeal was unsuccessful, in part because her twins "[were] not entitled to inherit from [Warren Woodward] under the Massachusetts intestacy and paternity laws," which is a criterion for eligibility for children's Social Security survivor benefits. Id. at 260-61. Ms. Woodward appealed the Administration's decision to the United States District Court for the District of Massachusetts. Id. at 261. The United States District Court subsequently certified the question regarding Massachusetts's intestacy and paternity law to the Supreme Judicial Court of Massachusetts. Id. The resulting opinion of the first high court to address this issue offers an interesting insight into an issue that is nearly certain to arise again.
The Supreme Judicial Court of Massachusetts first concluded that the state had no clear statutory rule addressing whether posthumously conceived children were entitled to inherit from the deceased parent's estate. Id. at 263-64. Next, the court relied upon three factors for its determination whether such an entitlement should exist under Massachusetts law: the best interest of the children, the state's interest in the orderly administration of estates, and the reproductive rights of the genetic parent. Id. at 264-65.
The best interest of the child, quite clearly, weighed heavily in favor of granting the children the ability to inherit from the deceased parent under the state's intestacy laws. Id. at 265. However, the court balanced this factor against the state's interest in the orderly administration of estates. Related to this consideration, the court considered the state's interest in protecting the children who are alive or conceived before the intestate parent's death; a potential concern in "an era [of] … serial marriages, serial families, and blended families." Id. at 266. The state's other administrative interests related to the requirement of a "filiation between the decedent and his issue" and the establishment of a limitations period for the commencement of claims against an intestate estate. Id. To conclude its balancing test, the court considered the state's interest "to honor the reproductive choices of individuals." Having previously recognized "a protected right to control the use of [one's] gametes" in the context of a frozen embryo disposition case, the court extended this reasoning to mean that a decedent's silence or equivocation as to the use of his frozen sperm "ought not be construed as consent." Id. at 269, citing, A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000).
After conducting its balancing test, the court concluded that a posthumously conceived child may enjoy inheritance rights under the state's intestacy laws when the surviving child or representative for the child establishes a genetic relationship, provides proof that the decedent "affirmatively consented to conception and to the support of the resulting child," and when no procedural bars, such as the statute of limitations, prevent the operation of the intestacy succession laws. Woodward, 760 N.E.2d at 272.
The court placed considerable reliance on its opinion from A.Z., regarding frozen embryo custody and disposition, to support its conclusion that the parent's right to reproductive freedom must be taken into account when considering the inheritance rights of a posthumously conceived child. Id. at 269. The court failed to explain, however, how a parent's protected interest in reproductive freedom should operate when a child has already been born. The court's concern focused on its belief that a "man … may preserve his semen for a myriad of reasons" and that in doing so, he only expresses a hypothetical interest in creating a child. Id. While this may be true, it is difficult to envision a circumstance where a person's right to reproductive freedom should ever trump the best interest of a living child. Although the court expressed concern that semen may be medically preserved for up to ten years, this issue would seem to be adequately addressed by the establishment of a limitations period, a factor already expressly considered by the court as a legitimate state interest. Id.
Interestingly, the conclusion of the Supreme Judicial Court of Massachusetts is probably the same that would be reached by a Texas court applying existing Texas law. Under Texas law, where a "spouse dies before the placement of eggs, sperm, or embryos," he or she is not the parent of the resulting offspring "unless the deceased spouse consented in a record that if assisted reproduction were to occur after the death the deceased spouse would be a parent of the child." See Tex. Fam. Code § 160.707. In some respects, by requiring evidence of a "record," the Texas statute goes even further than the Massachusetts opinion, which would have allowed any evidence of the father's wishes with respect to his desire to reproduce. However, Texas law would allow for a posthumously conceived child to inherit from a deceased parent provided the decedent's consent was appropriately recorded. See Tex. Prob. Code § 42 and Tex. Fam. Code § 160.201(5).
Nevertheless, as reproductive technology becomes increasingly utilized, the issue concerning the inheritance rights, and thus eligibility for social security survivor benefits, of posthumously conceived children will almost certainly arise more frequently in the future. Confusion may arise when no "record" of the decedent's wishes exists, or when the donating parent was not a "spouse." For this reason, the Texas Legislature has an interest in revisiting this issue.