I. Question Presented
Can a child conceived through in-vitro fertilization and dual embryo transfer (using
eggs from both female parents), and born two years after the number holder’s (NH)
death, be considered her “child” under Massachusetts law, so as to be eligible for
surviving child’s benefits?
II. Short Answer
For the reasons stated below, we believe that the child would not be able to inherit
from the NH under Massachusetts law based on the evidence presented to date.
According to the materials you provided, the NH, A~, and J~ were married in Massachusetts
in 2006. See Sept. 2015 Letter from C~. In 2009, both women began trying to become pregnant through
in-vitro fertilization and a sperm donor. Id.: see also Sept., 2015 Letter from K~. In January 2013, J~ gave birth to a child. See C~ Letter. Meanwhile, the NH was diagnosed with pancreatic cancer, and she died in
February 2013. See Death Certificate. She was domiciled in Massachusetts at the time. Id.
In February 2015, J~ gave birth to the Claimant, P~. See Birth Certificate. The birth certificate lists J~ as the mother and the NH as the
other parent. Id. According to a letter from the couple’s doctor, J~ became pregnant in June 2014,
following a dual-embryo transfer (one that originated from the NH’s eggs, and one
that originated from J~’s eggs, and both using the same sperm donor). See June, 2015 Letter from Dr. D~.
In June 2015, J~ applied for surviving child’s insurance benefits on Claimant’s behalf,
based on the NH’s record. See Application Summary for Child’s Insurance Benefits – Survivor Claim. SSA then requested
additional information, including fertility clinic records and evidence that the NH
consented to posthumous conception and support of Claimant. See June, 2015 and August, 2015 Letters. In response, J~ submitted four letters, from:
(1) J2~ (the NH’s mother); (2) K~ (the NH’s sister); (3) C~ (the NH’s friend); and
(4) S~ (another friend). According to C~ and S~, the Claimant was conceived from one
of the NH’s eggs. See C~ Letter; S~ Letter. Each letter also generally addressed the couple’s desire to
have multiple children, but did not specifically address the NH’s intentions with
respect to her eggs or embryos following her death.
IV. Applicable Law
The Social Security Act (the Act) provides for the payment of child’s insurance benefits
to a child of a number holder who dies when fully or currently insured if the child
has filed an application for benefits and was unmarried and under age 18 (or age 19
if a full-time student) at the time the application was filed and was dependent upon
the number holder at the time of death. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350
RS 00203.001(A)(1). The Act provides that a claimant is the “child” of an insured individual if
any one of several conditions is met. See 42 U.S.C. § 416(h)(2)-(3); 20 C.F.R. § 404.355(a)(1)-(4). As relevant here, a child may be entitled to benefits on the earnings record of a
deceased insured individual if the child could inherit the insured individual’s personal
property as her natural child under the intestacy laws of the state in which the insured
individual was domiciled at the time of her death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R.
§ 404.355(b)(1); see Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2025 (2012) (holding that a posthumously-conceived child is not
automatically a “child” within the meaning of 42 U.S.C. § 416(h), and upholding SSA’s
interpretation of the statute requiring proof that such children could inherit under
state intestacy laws). Because the NH was domiciled in Massachusetts when she died,
the intestacy laws of Massachusetts control here.
There is no Massachusetts statute specifically addressing the rights of posthumously-conceived
children. Until 2008, the Massachusetts intestacy statute, M.G.L. ch. 190, § 8, provided
that “[p]osthumous children shall be considered as living at the death of their parent.”
The Legislature, however, left the term “posthumous children” undefined, and did not
specify whether such children must be “in being” (or in utero) at the time of the
decedent’s death. See Woodward v. Comm’r of Soc. Sec., 760 N.E. 2d 257, 264 (Mass. 2002). In 2008, this section of the intestacy statute
was repealed, and replaced with M.G.L. ch. 190B, §2-108, which provides: “An individual
in gestation at a particular time is treated as living at that time if the individual
lives 120 hours or more after birth.” The revised statute does not contain any other
provisions concerning posthumous children.
In 2002, the Massachusetts Supreme Judicial Court (SJC) ruled that in certain limited
circumstances, a child resulting from posthumous reproduction may enjoy the inheritance
rights of issue under Massachusetts state law. Woodward, 760 N.E. 2d 257. Specifically, the child can inherit from the decedent if two conditions are met:
(1) a genetic relationship must be established between the child claimant and the
decedent; and (2) the child or his/her representative must establish that the decedent
“affirmatively consented to posthumous conception and to the support of any resulting
child.” Id. at 259. The SJC stated that a decedent’s silence or equivocal indications of a desire
to parent posthumously should not be construed as consent. Id. at 269. Rather, “the donor parent must clearly and unequivocally consent not only
to posthumous reproduction but also to the support of any resulting child.” Id. The burden of proof to show that these requirements are met rests with the surviving
parent or the child’s legal representative. Id. The Woodward requirements ((1) genetic relationship, and affirmative consent to both (2) posthumous
conception and (3) support) have since been incorporated into the Program Operations
Manual System (“POMS”). POMS GN 00306.520(B).
The POMS also provides examples of evidence that may be relevant to establishing the
three Woodward elements:
Evidence of the genetic relationship between the child and the deceased NH, including
any relevant evidence such as fertility clinic records or doctors’ statements related
to the collection of the deceased’s sperm and the transfer procedures utilized to
inseminate the mother; and
Evidence that the decedent affirmatively consented to posthumous conception and support
of the child; documents such as (but not restricted to) a will or other writings by
the decedent should be gathered, as well as statements from other family members,
doctors, and friends.
Id. The Woodward court did not specify what evidence would suffice for a surviving parent or legal
representative to meet her burden of proof on any of the three elements. This question
remains open today, as there are no subsequent Massachusetts cases addressing when
or how this burden can be met.
In our opinion, the evidence submitted to date is insufficient to establish that a
Massachusetts court would allow the Claimant to inherit the estate of the deceased
NH under the state’s intestacy laws.
First, it is important to clarify that the Claimant cannot automatically be considered
the NH’s marital child because she was not born during the marriage. See Woodward, 760 N.E. 2d at 266-67 (“Because death ends a marriage, posthumously conceived children
are always nonmarital children.”). Nor could she benefit from the presumption of legitimacy
afforded by Massachusetts law, as she was not born within three hundred days after
the marriage was terminated by death. See M.G.L. ch. 209C, § 6(a)(1). Also, no benefit inures from having the NH’s name on
the birth certificate. Under Massachusetts law, the NH’s name should not have been
entered as a parent, as she was deceased at the time of the Claimant’s birth. M.G.L.
ch. 46 § 1; M.G.L. ch. 209C § 2.
Moreover, it also appears that the Claimant cannot meet either of the Woodward requirements for posthumously conceived children, based on the evidence submitted
to date. First, this evidence does not convincingly establish a genetic relationship.
There is no indication that genetic testing has ever been conducted to confirm that
the NH is the Claimant’s genetic parent. Nor is there any confirmation from the clinic
where J~ and the NH were treated. The only evidence addressing this question is the
letters from two of the NH’s friends, stating that the Claimant was conceived from
the NH’s egg. See C~ Letter; S~ Letter. Neither friend explains the basis for her knowledge, however.
Moreover, if true, this fact is potentially subject to confirmation from the clinic,
or through genetic testing, yet the only evidence provided from the clinic (Dr. D~’s
letter) does not address this question. Rather, Dr. D~ stated only that a dual-embryo
transfer was performed, using eggs from both the NH and J~ (suggesting only a 50-50
chance of a genetic relationship). Therefore, the Claimant has not met her burden
with respect to the first Woodward requirement.
But even assuming the NH were the genetic parent, this would not end the inquiry.
In Woodward, the SJC held that even though the NH was the child’s biological father, “that fact,
in itself, cannot be sufficient to establish that the husband is the child’s legal
father for purposes of the devolution and distribution of his intestate property.”
Id. at 271. Rather, Woodward also requires the claimant or her representative to establish that the NH “affirmatively
consent[ed] to posthumous conception and to support of any resulting child,” and that
such consent was “clear and unequivocal.” Id. at 259, 269. Absent any subsequent guidance from Massachusetts courts as to what
evidence can suffice to meet this high standard, the evidence here appears to fall
There simply is no indication in any of the evidence submitted to date as to the NH’s
intentions regarding either posthumous conception or the support of any resulting
children. There are no statements or written records from the NH herself (either in
the materials you provided or in any of our online databases) that speak to any affirmative
assent to the use of her eggs for posthumous conception, or that demonstrate intent
to support any posthumous child. For example, there are no letters to family members
or friends, financial documents, insurance policies or other records indicating that
the deceased had planned for the support of posthumous children. And although each
of the letters from the NH’s friends and relatives addresses generally her intention
to have multiple children (at least three, according to her mother, see Sept., 2015 Letter from J2~), none of them specifically addresses her intentions
with respect to her remaining eggs or embryos after her death. Again, records addressing
such intentions, if they exist, would potentially be available from the fertility clinic, yet none have
been provided. At most, the NH’s sister’s letter states that the NH always wanted
to have at least two children, in part, so that her own children could have a similar
relationship to the sisters’ own relationship growing up, and so that her own children
(plural) and her sister’s children could play together. See K~ Letter. Although this letter arguably suggests that the NH wanted to have multiple
children regardless of whether she was alive, it does not speak directly to the question
of consent to posthumous conception. Therefore, these statements – addressing only
subjective intentions regarding parenthood generally, rather than consent to a specific
procedure – appear to fall short of the SJC’s requirement that consent to posthumous
conception be “affirmative, clear, and unequivocal.” Cf. Woodward, 760 N.E. 2d at 269.
Moreover, the mere fact that embryos from both women’s eggs remained available at
the clinic after the number-holder died, see J2~ Letter (noting that “there were still embryos available to be implanted”); C~
Letter (noting that the couple “had stored more eggs to try for more children in the
future”), also does not establish the necessary consent. In A.Z. v. B.Z., 725 N.E. 2d 1051 (Mass. 2000), the SJC upheld a permanent injunction prohibiting
a woman from using frozen pre-embryos to create a child against her ex-husband’s will,
even though he had consented to her using the embryos at the time they were created.
The SJC declined to enforce an agreement that would force the ex-husband to become
a parent against his will, citing several cases indicating judicial “reluctance to
enforce prior agreements that bind individuals to future family relationships.” Id. at 1058-59. In Woodward, 760 N.E. 2d at 269, the SJC relied, in part, on A.Z. v. B.Z. to require affirmative consent to posthumous conception, citing concerns about the
“lack of credible evidence of the husband’s true intention” and the “changed family
circumstances” in A.Z. v. B.Z. These concerns are equally applicable here, even though this case does not involve
any divorce. Here, the NH may well have intended to create as many children as possible
from the existing embryos, at the time they were created. But absent any evidence
as to whether she considered the question of posthumous conception, and whether and
to what extent her intentions may have changed in light of her illness and ultimate
death, Massachusetts courts would likely not find her earlier intentions controlling.
As noted above, no Massachusetts court has addressed the inheritance rights of after-born
children since Woodward, and the Legislature did not incorporate Woodward to any extent when it revised the intestacy statute in 2008. We believe this absence
of guidance from the state legislature or courts is controlling here. Moreover, several
reported cases addressing other questions of family and inheritance law suggest that
Massachusetts courts generally remain hesitant either to infer intent or to extend
inheritance rights. For example, in T.F. v. B.L., N.E. 2d 1244, 1250-52 (2004), the SJC reiterated the state’s interest in protecting
freedom of personal choice in matters of marriage and family, and its reluctance to
enforce prior agreements that bind individuals to future family relationships, or
to force procreation where a husband does not consent to use of his sperm. And in
Cohen v. Feuer, 810 N.E. 2d 1222, 1226 (Mass. 2004), the SJC cited Woodward in support of the proposition that the “Commonwealth and the decedent’s creditors
and survivors have a strong interest in the finality of estates.” Even if a genetic
relationship had been established, we believe Massachusetts courts would be reluctant
to extend inheritance rights to the Claimant here, because the existing evidence as
to the NH’s consent is equivocal at best.
We believe that Massachusetts courts would find that the Claimant could not inherit
from the NH as her child under Massachusetts intestacy laws and Woodward based on the evidence submitted to date. Accordingly, the Claimant does not appear
to be eligible for benefits.
Michael J. Pelgro
Regional Chief Counsel
By: Natasha Oeltjen
Assistant Regional Counsel