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After Robert Netting died of cancer in early 1995, his widow successfully underwent in-vitro fertilization with sperm he had deposited for her. But a year later, when Rhonda Gillett-Netting filed for Social Security benefits in Arizona for the twins she bore, her request was denied. Her fortunes have changed. It took eight years, but in a landmark case the Ninth Circuit U.S. Court of Appeals recently ruled that the twins were the decedent’s “legitimate” children, and therefore eligible for Social Security benefits, Gillett-Netting v. Barnhart, 03-15442. In a handful of cases across the country so far, posthumously conceived children are winning their legal battles, gaining inheritance rights and Social Security benefits. “I think we’ll see more and more of this, it’s just beginning to happen,” said California Assemblyman Tom Harman, R-Huntington Beach, the author of a bill that would grant rights to posthumously conceived children. “The laws of the various states haven’t kept up with reproductive technology.” Because the laws haven’t kept up with technology, the rights of posthumously conceived children still vary from state to state. Under the Social Security Act, a child has to prove dependency on the deceased parent to qualify for survivor benefits. Since posthumously conceived children weren’t alive when the parent died, proving dependency becomes a challenge. There are some legal loopholes. If the children are deemed “legitimate” under state law, there is a presumption of dependency under the Social Security Act. The children are also dependants if they are eligible to inherit under the state laws of intestate succession that govern inheritance from a person who dies without leaving a will. Several states have already amended their intestacy laws to include posthumous children. In Washington, Colorado, Delaware, Virginia and Texas, posthumously conceived children may receive inheritance rights if the decedent left written consent to be a parent. In Louisiana, a child is eligible to inherit from the deceased parent if born within three years of the decedent’s death and if the decedent left written consent. In California, Harmon’s bill, dubbed the “dead dad’s bill,” has made its way to the state Senate. The bill would give inheritance rights to children conceived within two years of the decedent’s death, if he or she left written consent to be a parent before the implantation. California is the only state currently working on a bill. Other states have granted rights through court decisions. The New Jersey Superior Court and the Supreme Court of Massachusetts each ruled that posthumously conceived children are legal heirs of a decedent if he or she leaves written consent to be a parent, In re Estate of Kolacy, 332 N.J. Super. 593, 2000, and Woodward v. Commissioner of Social Security, 435 Mass. 536, 2002. Both courts granted the children inheritance rights under their state’s intestacy laws. “The court stepped in because the legislature hadn’t foreseen this,” said Thomas Fallon of Segal, Edelstein, Bussone & Fallon in Beverly, Mass., the plaintiff’s attorney in Woodward. “Though if [the Social Security Administration] did the right thing in the beginning, I’m not sure anyone would even know about this case.” The plaintiff’s counsel in Woodward, the assistant U.S. attorney in Boston, George Henderson II, declined to comment. The only state to prohibit posthumous children from receiving benefits or inheritance of any kind through legislation is North Dakota. In Florida, a child conceived posthumously is eligible for inheritance rights only if the decedent included the child in a will. Despite these states’ stances, Gillett-Netting is a significant advance for the rights of posthumous children. “I think this will be a trend as reproductive technologies progress,” said Hagit Elul, of New York’s Hughes Hubbard & Reed, the lead plaintiff’s counsel in Gillett-Netting. “As people become more aware of this case, more people in this situation will file claims.” In Gillett-Netting, Elul argued that the children were the decedent’s “legitimate” children under an Arizona law that makes every child the legitimate child of its natural parents and thus entitled to the same rights. In a brief for appellee in Gillett-Netting, the U.S. Department of Justice defense counsel argued that the Netting children do not satisfy the definition of “legitimate” child, or the requirement of dependency on the decedent under the Social Security Act and therefore are ineligible for survivor benefits. They also argued that the children are not legitimate under Arizona state law qualifications, and do not have the same rights: “State law prohibits the differential treatment of marital and nonmarital children, but it does not give children conceived by artificial means the same support and inheritance rights given to naturally conceived children,” defense counsel said in the brief. A spokesperson for the U.S. Department of Justice declined comment. “My impression in general is that courts want to grant rights to children and not want to discriminate based on their birth,” Elul said. “The issue that I saw from this case is a need to be more flexible in the application of laws. � Just because the law doesn’t contemplate it doesn’t mean that it excludes it.” Another posthumous-conception case is ongoing in California, though the circumstances differ from the other litigation. Gaby Vernoff had sperm removed from her husband’s body shortly after his death — without consent, as in the Netting case — and is trying to receive benefits and inheritance rights for the child born as a result. In the Case of Gabina (Gabriela) L. Vernoff, 2003. The Social Security Administration ruled that Gaby Vernoff’s daughter, Brendalynn, is not eligible for survivor benefits under the Social Security Act because she is not a child of the deceased wage earner under California code. She was conceived after her father’s death, she would not be eligible for inheritance under state intestacy law, and she was not a dependant of her father’s at the time of his death, the Social Security Administration said. “According to their review of California code, she’s not to be considered a �child,’” said Wallace Vernoff of Pasadena’s Coulter, Vernoff & Pearson, Gaby Vernoff’s lawyer and the father of her late husband. “It’s not an issue of legitimacy in California, they’re saying that this was a �nonchild,’” he said. “I think that was implied with very tortured reasoning.” The case was filed in federal court more than a month ago, Vernoff said. Despite the Social Security Administration’s ruling, he remains hopeful. “I think that with [ Gillett-Netting] in mind, the judge will rule in our favor,” he said. Were Harmon’s bill to pass, Vernoff wouldn’t qualify, since she does not have written consent from her late husband. However, they’re arguing implied consent, since the couple intended to have children. Harmon said a key component to the law is the requirement for the decedent to leave written consent stating his or her intent to have a child post-mortem. “Hopefully they will not damn us on the issue of consent, because that wasn’t in the law then,” Vernoff said. Another stipulation in Harmon’s proposed bill prohibits posthumously conceived children from receiving inheritance rights if they are conceived more than two years after the death of their parents. But Vernoff said that that’s not enough time. After a failed attempt at fertilization, Gaby Vernoff finally gave birth to her daughter in 1999 — more than four years after her husband died. “There’s no way that you can rush this without a grieving period,” Vernoff said. “So if Harmon wants to set a time frame, that’s not going to work.” The time limitation for rights is intertwined with the administration of estates. Judges in both Kolacy and Woodward addressed this issue in their rulings, stating that intestate estates should be administered quickly, without having to wait for possible children to come into existence. Lindsay Fortado is a reporter with The National Law Journal , a Recorder affiliate based in New York City.

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