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In a case of fatherhood after death, Massachusetts’ top court has ruled that posthumously conceived children have inheritance rights. The ruling, by Massachusetts’ Supreme Judicial Court, is likely to affect cases across the country stemming from assisted reproductive technologies, which are increasingly making their way through the courts. “All these issues are just bubbling beneath the surface,” said Leslie Bender, a professor of law and women’s studies specializing in bioethics at New York’s Syracuse University. She added that state legislatures “seem terribly unwilling to get ahead of the related reproductive issues.” The question came before the court after twins born two years after the death of their father sought Social Security benefits. The twins were born in 1995 to Lauren Woodward of Beverly, Mass., two years after the death from leukemia of her husband, Warren. In 1996, the Social Security Administration rejected Woodward’s claims for survivor’s benefits. After exhausting all administrative remedies, her attorney, Thomas C. Fallon of Beverly’s Segal, Edelstein, Bussone & Fallon, brought the case to the district court. The court referred to the Supreme Judicial Court a certified question on whether posthumously conceived children enjoy the same inheritance rights as natural children under Massachusetts’ intestate law. Woodward v. Commissioner of Social Security, No. SJC-08490. In its Jan. 2 ruling, the court placed three threshold conditions on children’s right to inheritance: a genetic relationship must be proven, there must be consent of the decedent to conception and there must be consent to support for the resulting child. The court did not put a time limit on the claim but suggested that one might be applicable. While the ruling does not decide the outcome of the Woodward case, Fallon said he is “ecstatic” about the opinion. Fallon, a general practitioner at a six-lawyer firm, asserted any other ruling would have been unfair. “You’d be discriminating against these children because of the timing of their birth and they had nothing to with their birth.” Assistant U.S. Attorney George Henderson, who tried the case for the government, would only comment, “We appreciate that the SJC has provided some clarity on this issue of Massachusetts’ law.” He said the government has not decided what action to take next. Louisiana is apparently the only state in the country to have a statute on this point. That law puts a two-year limit on children’s rights and requires the decedent to authorize a surviving spouse in writing for the use of his gametes. OTHER STATES’ RULINGS There have been two similar cases handled by the courts. A court of appeal in California ruled that a man’s sperm could be bequeathed to his girlfriend, but noted that it was unlikely that the estate would be subject to claims with respect to any children. Hecht v. Superior Court, 16 Cal. App. 4th 836 (1993). In 2000, a New Jersey superior court ruled that a child conceived after the death of a woman’s husband could make a claim for survivor’s benefits. However, the Social Security Administration’s Appeals Council refused to accept the judge’s decision, in part because it was not a final ruling by the state’s highest court. Estate of Kolacy, 332 N.J. Super. Ct. 593 (2000). David English, a professor of law at the University of Missouri, said he expects the Woodward ruling to be influential nationally, although he suggests that other states may distinguish it because it involves Social Security rather than inheritance and doesn’t have to address property rights when other heirs are involved. He noted, however, that the ruling is likely to affect several practice areas. “The significance is not limited to intestate succession; it’s obviously very important as far as Social Security benefits and to the interpretation of will and trust documents,” he said. CAUTIOUSLY PRO-CHILD While many legal scholars see the ruling as good for children, Pamela Bridgewater, who teaches reproductive rights and inheritance law at American University’s Washington College of Law, expressed concern that the ruling went further than it needed to in defining the requirements for eligibility. Bridgewater, like others, reads the court’s limits as motivated by the desire to protect anonymous or known sperm donors from inheritance burdens. But she notes that much related case law, on child support issues for example, relies merely on the intention of the father or the implicit consequences of the sexual act rather than on affirmative consent for conception and support. “This is an unexpected departure from an intention-based standard of support to an explicit requirement of consent, and the burden is borne by the surviving spouse, ordinarily a widow.”

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