- H & W got married on Oct. 6, 1990
- In June 2001, doctors produced 10 embryos using H & W’s genetic material
- 2 embryos were implanted in W
- 4 were frozen for preservation
- W suffered a miscarriage of both of the implanted embryos.
- On July 19, 2001, H died intestate.
- On June 26, 2002, W had 2 more frozen embryos thawed and implanted which resulted in a single pregnancy.
- On Feb. 14, 2003, TC entered an order providing that, upon the child’s birth, H would be indicated as the father on the birth certificate and would be “the legitimate child of [Plaintiff] and Wade W. Finley, Jr. for any and all lawful purposes.”
- Child was born on March 4, 2003
- On April 13, 2003, W filed for both mother’s and child’s insurance benefits based on the earnings of H
- Claim initially denied
- ALJ ruled in favor of W on June 16, 2006
- On Dec. 14, 2006, AC reversed ALJ’s decision
- W appealed from decision of the Commissioner of the Social Security Administration denying child’s insurance benefits.
- The United States District Court, Eastern District of Arkansas, Little Rock Division, Garnett Thomas Eisele, J., certified question.
- Does a child, who was created as an embryo through in vitro fertilization during his parents’ marriage, but implanted into his mother’s womb after the death of his father, inherit from the father under Arkansas intestacy law as a surviving child?
- A child created as embryo by in vitro fertilization during marriage but implanted in mother’s womb after father’s death was not an heir entitled to inherit by intestate succession from father’s estate.
- W argues her child was conceived when the embryos were fertilized in 2001 and therefore not posthumously conceived
- D argues that child was neither born nor conceived during the marriage, which ended at H’s death
- D defines “conception” as “the onset of pregnancy” which didn’t occur until 2002
- D further argues that, since inheritance laws require finality, the legislature would not have defined the term “conception” to include a medical procedure that could result in a biological birth many years after the parents death
- Under the Social Security Act, a child is entitled to child’s insurance benefits if he is the child of an individual who dies while insured, if the child was dependent upon the insured at the time of the insured’s death.
- In order to inherit as a posthumous heir under Arkansas law, the child must not only have been born after the decedent’s death, but must also have been conceived before the decedent’s death
- Under Arkansas law, any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence.