In a fascinating case in Arkansas, the state Supreme Court has ruled that a child conceived through in vitro fertilization is not his father’s heir if the embryo was implanted after his death. Amy Finley’s problem is that the state law predates in vitro procedures and thus the court found no intention of the legislature to extend inheritance to such births. The case raises the question of not just the meaning of conception but the status of posthumous children.

The issue arose in a dispute between Amy Finley and the Social Security Administration, which denied her claim for “child’s insurance benefits.” Under the 1969 statute, such a birth did not fall within the definition of an heir for individuals who die intestate or without a will.

Amy Finley and her husband, Wade Finley Jr., had 31 eggs extracted and created four embryos in June 2001. On July 2, 2001, two of the fertilized embryos were implanted and four remaining fertilized
embryos were stored by cryopreservation. Notably, therefore, Wade had agreed to the implantation but the first attempt led to a miscarriage two weeks later. Then on July 19, 2001, Wade Finley, Jr. was killed in a freak accident when he received a fatal electric shock while washing his company truck with an electric power washer.

Amy went ahead with the implantation and had a child in March 2003. After she was denied benefits, an administrative law judge reversed the decision and awarded the insurance benefits. Remarkably, the agency pursued the case further. It won and reversed by administrative judgment. For a copy of that judgment, click here
This led to a curious route to the state appellate court, which uphold the rejection, and then to a federal court, which then sent it back to the state court.

The case poses an interesting question of how a court deals with an outdated statute. In the area of legisprudence, many would argue that the court should update the law in this type of reasonable way without deferring to the legislature. However, others insist that such decision are properly made by elected officials given the social implications of the rules of conception.

There is no question that Wade Finley III is the child of the deceased. However, the state insists that “conception” only occurs after implantation.

The issue should turn on whether the decision was already made for implantation and whether Wade could have stopped the procedure. Most such facilities require both parents to agree when the father is a donor. The relative rights of donors and birthing mothers has led to a series of recent ruling, including one in which the Pennsylvania Supreme Court supported a donor who contested child support in a related case, click here

The Court encouraged the legislature to act, with Justice Paul Danielson noting “we can definitively say that the General Assembly … did not intend for the statute to permit a child, created though in vitro fertilization and implanted after the father’s death, to inherit under intestate succession . . . we strongly encourage the General Assembly to revisit the intestacy succession statutes to address the issues involved in the instant case and those that have not but will likely evolve.”

For the full story, click here and here