Blogs from September, 2008


Should a child have protected rights to property and inheritance where the child 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?

A recent case illustrates the difficult policy and legal considerations that factor into resolving these challenging cases: Amy and Michael Finley were married in 1990 and during the course of their marriage pursued fertility treatments and ultimately participated in an in vitro fertilization and embryo transfer program.

Deep Freeze
In June 2001, doctors produced ten embryos using Ms. Finley’s eggs and Mr. Finley’s sperm. Two of the embryos were implanted into Ms. Finely’s uterus and four embryos were frozen for preservation. Ms. Finley later suffered a miscarriage of both of the implanted embryos.

Life and Death
Mr. Finley died intestate on July 19, 2001, and shortly thereafter, Ms. Finley had two of the previously frozen embryos thawed and transferred into her uterus, resulting in a single pregnancy. After the child’s birth, Ms. Finley applied for benefits and insurance based on the earnings record of Mr. Finley. After her claim was denied, she appealed to the law and her case progressed through the state and federal court system. Finley v. Astrue, —S.W.3d—, 372 Ark. 103, 2008 WL 95775 (Ark. 2008).

Protect the Children
This unique issue has presented itself several times especially in light of modern medical advances in reproductive science. On one hand, it is reasonable to conclude that Finley’s child was neither born nor conceived during their marriage, which ended upon Mr. Finley’s death. On the other hand, it can be argued that a child is “conceived” at the time a woman’s egg is fertilized by the father’s sperm and therefore based upon the medical definitions of “conception” the child was conceived during the life of Mr. Finley, and that as a matter of public policy, the child’s inheritance and property rights should be protected by a court of law.

Florida Probate Code vs. Florida’s Determination of Parentage Act
The Florida Probate Code provides that heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime. Fla.Stat. §732.106. However, the Florida legislature has written into law in the Determination of Parentage Act, Fla.Stat.§ 742.17 that a child ho is conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryo to a woman’s body is not eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will. One Florida court used the Determination of Parentage Act to deny benefits to a child conceived from the sperm of a person who died before the transfer to the mother’s body. Stephen v. Commissioner of Social Security, 386 F.Supp.2d 1257 (M.D.Fla. 2005).

Why are children treated differently under these two statutes? In my view, the legislature needs to directly address this issue because the law’s treatment of children in this regard is inconsistent and illogical. There is no doubt that under the circumstances described above, the legitimacy of the child would be irrebuttable presumed under §742.11. Why then should the child not be treated as a dependent and entitled to property and inheritance rights?


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