KAREN SALMON
Spring 2007
Advanced Legal Research

DETERMING THE INHERITANCE RIGHTS
OF POSTHUMOUSLY CONCEIVED CHILDREN:

TABLE OF CONTENTS

I. PURPOSE 3

II. GENERAL OVERVIEW 3

A. Organization

B. Choosing a Subject, Topic, or Key Word

III. PRIMARY SOURCES 4

A. Finding State Case Law

B. Finding State Statutes

C. Finding Federal Cases

D. Finding Federal Statutes

E. Finding Federal Administrative Materials

IV. SECONDARY SOURCES 9

A. Legal and Governmental Secondary Sources

1. American Law Reviews

2. Law Reviews and Journals

3. Uniform Laws Annotated

4. Research Guides, Bibliographies and Indexes

5. Practitioner-related Sources, Legal Treatises and Restatements

6. Other Legal Resources

7. Special Interest Groups and Organizations

B. Interdisciplinary and Non-Legal Resources

1. Special Interest Groups and Organizations

2. Journal Articles, Periodicals, and Other Resources

3. Statistical Resources

I. PURPOSE

In the last 30 years the world has seen a rapid increase in medical technologies designed to assist in human reproduction, known as assisted reproductive technologies (“ART”). Recently, reproductive technologies, such as cyropreservation, have resulted in children being conceived after the death of one or both of their genetic parents. This Pathfinder provides resources for exploring the complex legal issues surrounding inheritance rights in the United States, which have evolved from children conceived posthumously with the aid of ARTs.

II. GENERAL OVERVIEW

A. Organization

While the concept of posthumously conceived children is relatively new, their has been action from both federal and state governments. Therefore, the information found in this pathfinder will provide a research guide for federal law, state law, and secondary sources.

This pathfinder is broken down into two major sections: Primary Sources and Secondary Sources.

Although inheritance rights of ART children is a new concept in the legal field and a majority of information is found in secondary sources, the primary sources have been placed first since they provide the most direct guidance. The primary source section is then broken down into six parts: state case law, state statutes, state administrative materials, federal case law, federal statutes, and federal administrative materials. Each of these three parts demonstrates how to find primary sources from a specific starting point such as a subject/topic search, citation, or key word.

The secondary sources section is arranged in two parts: legal and governmental sources and interdisciplinary and non-legal sources. As suggested previously, because inheritance rights of ART children is such a new concept some of the most updated and relevant information can be found in secondary sources. Therefore, I suggest looking through all the resources, both primary and secondary, without an order of importance.

B. Choosing a Subject, Topic, or Key Word

Whenever a scientific advancement evolves a string of new procedures and concepts soon follow. In order to know all possible key words, subjects, and search terms, it is important to start with an overview of new vocabulary. An example of search terms may include: “assisted reproductive technology”, “cyropreservation”, “death conception”, “in vitro fertilization (IVF)”, “posthumous”, and “surrogate mother”.

For a more in-depth overview of terms I suggest the following resource:

The International Committee Monitoring Assisted Reproductive Technologies (ICMART) glossary on ART terminology. 86 Fertil Steril 1 (2006): 16-19.

III. PRIMARY SOURCES

A. Finding State Case Law

1. Selected state caselaw will include:

Woodward v. Comm’r of Social Security, 760 N.E.2d 257 (Mass. 2002). The Supreme Judicial Court of Massachusetts determined the first Massachusetts requirements for posthumously conceived children to be deemed a child of the decedent enabling them to inherit Social Security benefits. These requirements included: (1) proving paternity; and (2) the surviving parent (or child’s legal representative) proving the decedent consented to posthumous reproduction and the support of a resulting child.
Hecht v. Superior Court, 50 Cal. App. 4th 1289 (Cal. Ct. App. 1996). After much debate from a decedent’s existing children, the Hecht court allowed reproductive material, sperm, to be bequeathed and inherited. The will of this particular individual also made it clear that his girlfriend would be using such sperm to attempt a child’s conception. Therefore, Hecht assisted in making posthumous conception a reality under California law.

2. Suggestions for finding more caselaw:

Keyword Search: Topic and Key Number Search: West Law Topic and Key Number Search: Lexis

“posthumous! w/s child! w/p inherit” 124k47(3) Decent and Distribution—Posthumous Children and Children born after execution of a will Paternity and Surrogacy under Family Law

“posthumous! w/1 child!” 76Hk86 Children Out-of-Wedlock, From or through father Death and Incapacity under Real Property Law

“posthumous! w/s inherit!” Ownership and Transfer under Real Property Law

Intestate Succession under Real Property Law

Testamentary Dispositions under Real Property Law

B. Finding State Statutes

1. The most comprehensive resource with a great breakdown of the evolution and application of all existing state statutes surrounding inheritance rights and posthumously conceived children is Carole Bass. What If You Die, And Then Have Children? 23 (2006).

However, to find statutes under Westlaw or Lexis I suggest the following searches:

Terms and Connectors:	Natural Language:
“posthumous! w/s child! w/s inherit!”	“posthumous child inherit”
“posthumous! w/s child!”	“posthumous child”

For example, relevant State statutes will include:

State	Citation	Relevant Portion of Statute
Alabama	Ala. Code §43-8-47	In order inherit, child must have been conceived prior to death of parent. Alaska Alaska Stat. §13-12-108 A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
Arizona	Ariz. Rev. Stat. Ann § 14-2108	A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours. Arkansas Ark. Code. Ann § 28-9-210 In order inherit, child must have been conceived prior to death of parent.
California	Cal. Probate Code §6407	A posthumous child may inherit if: (1) the decedent consented in writing to be treated as a parent; (2) if the decedent designated an agent; (3) the decedent’s designated agent gives notice to the person with the power to control the distribution of the estate within 4 months of his death that the decedent’s genetic material is available; and (4) a child is conceived within 2 years after the decedent’s death.
Colorado	Colo. Rev. Stat. Ann. §15-11-108	Enacted §707, 9B ULA of the Uniform Parentage Act. Deceased parent is not treated as apparent of a posthumously conceived child unless he consented in a record to be a parent of such child. Connecticut No express statutory law
Delaware	13 Del.C §8-707	Enacted §707, 9B ULA of the Uniform Parentage Act. Deceased parent is not treated as apparent of a posthumously conceived child unless he consented in a record to be a parent of such child. Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime.
Florida	Fla. Stat. Ann. §732.106, §742.17	A posthumously conceived child will not be eligible for for a claim against the decedent’s estate unless the child has been provide for by the decedent’s will.
Georgia	Ga. Code Ann. §53-2.1(a)	In order inherit, child must have been conceived prior to death of parent. Hawaii Haw.Rev.Stat. §560:2-108 A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
Idaho	Idaho Code §15-2-108	In order for the child to inherit as if born during the decedent’s lifetime, they must be conceived naturally or by artificial means before decedent’s death, but born within 10 months.
Illinois	IL Code §755 art. 5 §2-3	Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime. Indiana IN Code §29-1-6-1 (51. Posthumous Children) Posthumous children inherit as if born during the decedent’s lifetime.
Iowa	IA Code Ann. §633.220	Posthumous children inherit as if born during the decedent’s lifetime. Kansas KA Stat. Ann. §59-501 Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime.
Kentucky	KY Rev. Stat. Ann. §391.070	In order for a child to inherit as if born within decedent’s lifetime it must be born within 10 months after decedent’s death.
Louisiana	La. Civ. Code Ann. art. 940	A posthumously conceived child may inherit from a deceased parent if the decedent authorized in writing for the surviving spouse to use his genetic material for posthumous conception, and the resulting child is born within 3 years of the decedents death.
Maine	Me. Rev. Stat. Ann. tit. 18-A § 2-108	In order inherit, child must have been conceived prior to death of parent.
Maryland	Md. Ann. Code §3-107	In order inherit, child must have been conceived prior to death of parent.
Massachusetts	Mass. Gen. Laws. Ann. 190 §8	Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime. Michigan Mich.Stat. Ann. §700.2108 A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
Minnesota	Minn. Stat §542.2-108	A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
Mississippi		No express statutory law
Missouri	Ver. Ann. MI. Stat. §474.050	Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime. Montana Mont. Code Ann. §72-2-118 A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours. Nebraska Neb.Rev.Stat. §30-2308 In order inherit, child must have been conceived prior to death of parent.
Nevada	Nev. Rev. Stat. Ann. §132.90	Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime.
New Hampshire	NH Rev. Stat. Ann §551:10	Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime. And a father can’t deny a posthumous child of their right to inherit in a will.
New Jersey	N.J. Rev. Stat. Ann. §3B: 5-8	A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
New Mexico	N.M. Stat. Ann §45-2-108	A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
New York	N.Y. Estates, Powers and Trusts Law Section 2-1.3	In order inherit, child must have been conceived prior to death of parent.
North Carolina	N.C. Gen. Stat. Ann. §31-5.5	In order for a child to inherit as if born within decedent’s lifetime it must be born within 10 months after decedent’s death.
North Dakota	N.D. Cent. Code §30.1-04-04	Enacted §707, 9B ULA of the Uniform Parentage Act. Deceased parent is not treated as apparent of a posthumously conceived child unless he consented in a record to be a parent of such child.
Ohio	OH Rev. Code Ann. §2105.14	Posthumous children inherit as if born during the decedent’s lifetime.
Oklahoma	OK Stat. Ann. §228	Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime.
Oregon	Or. Rev. Stat. §112.075	In order inherit, child must have been conceived prior to death of parent.
Pennsylvania	PA Stat. Cons. Stat. Ann. §2104	Posthumous children inherit as if born during the decedent’s lifetime.
Rhode Island	R.I. Gen. Laws. §§33-6-23, 33-6-24, 33-6-27	Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime.
South Carolina	Code Laws S.C. Ann. §27-5-120	In order for a child to inherit as if born during a decedent’s lifetime, it must be conceived before decedent’s death and born within 10 months of decedent’s death.
South Dakota	S.D. Codified Laws Ann. §29A-2-108	A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
Tennessee	Tenn. Code. Ann. §31-2-108	In order inherit, child must have been conceived prior to death of parent.
Texas	Tex. Fam.Code §160.707	Enacted §707, 9B ULA of the Uniform Parentage Act. Deceased parent is not treated as apparent of a posthumously conceived child unless he consented in a record to be a parent of such child.Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime.
Utah	Utah Code Ann. § 7-2-108	Enacted §707, 9B ULA of the Uniform Parentage Act. Deceased parent is not treated as apparent of a posthumously conceived child unless he consented in a record to be a parent of such child.
Vermont		No express statutory law
Virginia	Va. Code Ann. §20-158B Va. Code. Ann. §20-164(i)	Deceased parent is not a parent of a posthumously conceived child, unless implantation occurs before the treating physician can reasonably be advised of the decedent’s death, or the decedent parent consented in writing before implantation to be treated as a parent.
Washington	Rev. Code Wash. (ARCW) §26.26.730	Enacted §707, 9B ULA of the Uniform Parentage Act. Deceased parent is not treated as apparent of a posthumously conceived child unless he consented in a record to be a parent of such child.Posthumous children of intestate inherits are treated as if they were born during the decedent’s lifetime.
West Virginia	W.Va. Code §421-8, §42-1-3f	A child in gestation at decedent’s death is treated as the decedent’s child if the child survives for 120+ hours.
Wisconsin	Wis. Stat. Ann. §854.21(5)	In order inherit, child must have been conceived prior to death of parent.
Wyoming	Wyo. Stat. §2-4-103	Enacted §707, 9B ULA of the Uniform Parentage Act. Deceased parent is not treated as apparent of a posthumously conceived child unless he consented in a record to be a parent of such child.

C. Finding Federal Cases

Some of the major federal cases in this area have been an attempt to collect Social Security benefits, allowing one to narrow a federal search to relevant sections of the Social Security Act.

Relevant federal caselaw will include:

Gillett-Netting v. Barnhart, 371 F.3d 593 (C.A. 9 2004). This case determined that if there is no question of a biological link, regardless of the child being born posthumously, then the child is a “child” under the Social Security Act and no further analysis needed.
Haas v. Chater, 79 F.3d 559 (C.A. 7 Ind. 1996). This case is significant because the court determined that a posthumously conceived child was not entitled to benefits. As a result, on appeal the child argued that such a denial was unconstitutional. The case was dropped and the Social Security Administration agreed to pay benefits to the child.

Suggestions for finding further federal caselaw:

Keyword Search:	Topic and Key Number Search: West Law	Topic and Key Number Search: Lexis
“posthumous! w/s child! w/p inherit”	124k47(3) Decent and Distribution—Posthumous Children and Children born after execution of a will	Paternity and Surrogacy under Family Law
“posthumous! w/1 child!” iii. “posthumous! w/s inherit!”	76Hk86 Children Out-of-Wedlock, From or through father	Death and Incapacity under Real Property
	356A Social Security and Public Welfare	Ownership and Transfer under Real Property
		Intestate Succession under Real Property
		Testamentary Dispositions under Real Property
		Federal Public Benefits Cases and Social Security Decisions under Public Health & Welfare Law and Social Security

D. Finding Federal Statutes

United States Code

The general citation to search is 42 USC Ch. 7 Social Security, which can then lead you to relevant subsections such as 416, 402, and 404 .

If you attempt a term search in the USC you should know that there is nothing explicitly mentioning posthumously conceived children. Therefore, I suggest searching generally for “depend! w/s child!” “social security” or “child benefits”.

E. Finding Federal Administrative Materials

Code of Federal Regulation

Similar to finding relevant federal statutes, there are no specific administrative materials for this topic. However, as demonstrated in the caselaw, one of the issues surrounding inheritance of posthumously conceived children stems from the definition of child under federal law. Therefore, I suggest looking again at the regulations outlined under the Social Security Administration for children to receive benefits. This can be found at 20 CFR chp. III, Pt. 404, Subpt D. I found the most efficient way to research the CFR is to simply use the Table of Contents.

Again, if you attempt a term search in the CFR you should know that there is nothing explicitly mentioning posthumously conceived children. Therefore, I suggest searching generally for “depend! w/s child!” “social security” or “child benefits”.

IV. SECONDARY SOURCES

A. Legal and Governmental Secondary Sources

1. American Law Reviews Relevant ALRs include:

17 ALR 6th 593 (2006). Legal Status of Posthumously Conceived Child of Decedent. This is a very comprehensive source. It includes citations to relevant case and statutory law in Arizona, California, Florida, Louisiana, Massachusetts and New Jersey. As well as practice pointers and an explanation of the right to benefits including Social Security.

Suggested searches include:

Westlaw	LexisNexis
ti(posthumous! w/s child!) under ALR	TEXT(posthumous! AND child!) under ALR
	TITLE(posthumous! AND child!) under ALR

2. Law Reviews and Journals Selected Law Review articles include:

Ronald Chester, Freezing the Heir Apparent: A Dialogue on Postmortem Conception, Parental Responsibility, and Inheritance, 33 Hous. L. Rev. 967 (1996). Looking as specific societal values, the current law surrounding posthumously conceived children, the Constitution, and various ethical arguments the author suggests where there may be a line for regulation to form.
Sharona Hoffman and Andrew P. Morriss, Birth After Death: Perpetuities and the New Reproductive Technologies, 38 Ga. L. Rev. 575, 598 (2004). This is a very comprehensive source providing an in-depth discussion of the Rule Against Perpetuities and how posthumously conceived children call for a new definition or application of the Rule.
See Lisa M. Burkdall, A Dead Man’s Tale: Regulating the Right to Bequeath Sperm in California, 46 Hastings L.J. 875, 904-905 (1995). Written post Hecht this article provides an explanation of California law, as well as other state approaches to inheritance rights for posthumously conceived children. Such states include Louisiana, North Dakota, and Virginia. The author attempts to provide a guide to ensure that posthumously conceived children will inherit.
Jamie Rowsell. Stayin’ Alive: Postmortem Reproduction and Inheritance Rights. 41 FAMCR 400, 406 (2003). This article suggests that frozen sperm should be given property status, and like Hecht, should be allowed to be bequeathed. Furthermore, the author uses the clear and convincing standard to determine whether posthumous conception should be permitted.
Sheri Gilbert’s, Fatherhood From the Grave: An Analysis of Postmortem Insemination, 22 Hofstra L Rev. 521, 564 (1993). This article provides a great background of the evolution of cyropreservation. Looking from a Constitutional prospective the author finds that it is debatable whether there is a compelling state interest, which justifies restricting the right to procreate.

Suggestions for Finding Law Reviews and Legal Journals:

Similar to finding state and federal cases, a simple terms and connectors search (“posthumous! w/s child! w/s inherit!) under all law reviews and journals can be a good staring point for Westlaw, LexisNexis, and LoisLaw searches. However, the following searches can provide a more narrowly construed set of results: * LegalTrac: ke(posthumous) And ke(child) * Westlaw: ti(posthumous! w/s child!) * LexisNexis: i. “posthumous! w/s child” under Public Health & Welfare topic, for Health Care Law Review Articles, Combined. ii. “posthumous! w/s child! w/p inherit!” under Family Law Review Articles, combined.

3. Uniform Laws Annotated

Due to the fact that each state has various laws surrounding inheritance both testate and intestate it is conceivable that there may have been an effort to suggest guidelines for model laws when it comes to posthumous conception and inheritance.

Selected Uniform Laws are:

The National Conference of Commissioners of Uniform State Laws (NCCUSL) The Uniform Status of Children of Assisted Conception Act §4(b), 9B U.L.A. This was the first attempt to address posthumous conception. Initially both North Dakota and Virginia adopted the USCACA, however, since the 2000 North Dakota has changed to enact the UPA.
Uniform Law Annotated, Vol. 9B, West Group, 2001 with supplement, vol. 9B p. 2999 “Uniform Parentage Act (2000)”, Art. 7 & Art. 8.

The following states have adopted the UPA: Colorado, Delaware, North Dakota, Texas, Utah, Washington, and Wyoming. As of 2006, three states were considering adoption of the UPA: Illinois, Maine, and Oklahoma.

4. Research Guides, Bibliographies and Indexes

Michael Flood. Reproductive Issues and Technologies. In: The Men’s Bibliography: A comprehensive bibliography of writing on men, masculinities, gender, and sexualities. 15th edition, 2006.
Bibliography of bioethics sources on Reproductive Technologies
Daniel Webster College. Pathfinder: Reproductive Rights.
Massachusetts Trial Court Law Libraries. Surrogate Parenting Law in Mass.
Georgia State University College of Law. Assisted Reproductive Technology and the Law.

5. Practitioner-related sources, Legal Treatises and Restatements

Similar to finding state and federal cases, a simple terms and connectors search (“posthumous! w/s child! w/s inherit!) can be a good staring point for both Westlaw and LexisNexis searches.

The Law Library catalog, PORTIA, can be a great place to begin your treatise research. When searching “subjects” in PORTIA, you will need to search “Human Reproduction”, “Human Reproductive Technology”, “Human Artificial Insemination”, “Human In Vitro Fertilization”, “Frozen Human Embryo” or “Surrogate Motherhood”.

Selected materials will include:

Adoption and Reproductive Technology Law in Massachusetts, Susan L. Crockin, editor, MCLE, 2000.
Family Law in a Nutshell, Harry D. Krause, West Group, 1995, chp. 13
Restatement 3rd of Property. Wills & Don. Trans. §2.5 (1999).
Coppo, Timothy. Reproductive technology: a research guide to the legal status of the frozen human embryo. Buffalo, N.Y.: W.S. Hein, 1996.

6. Other Legal Resources

Findlaw: This database searches all words that are entered in your query. I suggest searching all of Findlaw for “sperm inheritance”.

7. Legal Special Interest Groups and Organizations

American Bar Association. Special Committee on Bioethics and the Law. 740 15th St., NW, Washington, D.C. 20005. (t): 202-662-1694, (f); 202-638-3844. See the Committee directory. Such members include Charles Ronald Chester. New England Law Library. 154 Stuart Street, Boston, MA (t) 617-422-7254, (f): 617-4227453, rchester@fac.nesl.edu.
Charles P. Kindregan Jr. Suffolk University Law School. Full-time Faculty. 120 Tremont St, Suite 240-E, Boston, MA 02108-4977. (t): 617-573-8193, (f): 617-723-5872, ckindreg@suffolk.edu. Posthumous Reproduction (2005).
The Michigan Law Revision Commission. Boji Tower, 124 W. Allegan, 4th Floor, P.O. Box 30036, Lansing, MI, 48909-7536, (t): 517-373-0212 (f): 517-373-7668. Reproductive Technology Report

B. Interdisciplinary and Non-Legal Resources

1. Special Interest Groups and Organizations

American Society of Reproductive Medicine. 1209 Montogomery Highway, Birmingham, Alabama 35216-2809 (t): 205-978-5000, (f): 205-978-5005. Publications on sperm donation and artificial insemination
Center for Disease Control. Department of Health and Human Services. CDC/DRH 4770 Buford Hwy, NE MS K-20, Atlanta, GA 30341-3717. (t): 770-488-5200. Reproductive Technology Report
The President’s Council on Bioethics. 1425 New York Avenue, NW Suite C100, Washington, D.C., 20005, (t): 202-296-4669, e-mail info@bioethics.gov. Reproduction and Responsibility. The Regulation of New Biotechnologies (March 2004)

2. Journal Articles, Periodical, and Other Resources
To locate other resources including medical journal article, periodical articles, etc. I suggest PubMed.

The following searches are most effective:

“posthumous child”, Limits: Bioethics
“posthumous child”, Limits: Practice Guideline
“death conception”, Limits: Bioethics

Relevant periodical articles include:

Lewin, T. The Nation: Taking After Father; A Frozen Sperm Riddle. New York Times. January 13, 2002.
Atlanta Journal Constitution. Study Committee would weigh Reproductive Technology Issues (March 2007).

3. Statistical Resources
Specific information on posthumous conception success is non-existent. However, some of the statistics provided may be useful in determining the likelihood of the success. Selected sites include:

Erickson, T. Offering Hope: Frozen egg results in pregnancy, team of local doctor says. Family Formation Law and Reproductive Law, Surrogacy & Egg Blog. February 22, 2007.
The Infertility Center of Saint Louis has a well laid out explanation of the procedure as well as their success rate.
West Coast Fertility Centers. Egg Freezing Statistics.

I.	PURPOSE	3
II.	GENERAL OVERVIEW	3
	A. Organization
	B. Choosing a Subject, Topic, or Key Word
III.	PRIMARY SOURCES	4
	A. Finding State Case Law
	B. Finding State Statutes
	C. Finding Federal Cases
	D. Finding Federal Statutes
	E. Finding Federal Administrative Materials
IV.	SECONDARY SOURCES	9
	A. Legal and Governmental Secondary Sources
	1. American Law Reviews
	2. Law Reviews and Journals
	3. Uniform Laws Annotated
	4. Research Guides, Bibliographies and Indexes
	5. Practitioner-related Sources, Legal Treatises and Restatements
	6. Other Legal Resources
	7. Special Interest Groups and Organizations
	B. Interdisciplinary and Non-Legal Resources
	1. Special Interest Groups and Organizations
	2. Journal Articles, Periodicals, and Other Resources
	3. Statistical Resources

DETERMING THE INHERITANCE RIGHTSOF POSTHUMOUSLY CONCEIVED CHILDREN: