The number holder (NH) was domiciled in Massachusetts at the time of her death; therefore, we look to the intestacy laws of Massachusetts to determine the parent-child relationship. There is no Massachusetts statute specifically addressing the rights of posthumously-conceived children. However, in 2002, the Massachusetts Supreme Judicial Court ruled that in certain limited circumstances, a child resulting from posthumous reproduction may enjoy the inheritance rights of issue under the Massachusetts state law and the Woodward Case requirements which are: (1) genetic relationship, and affirmative consent to both (2) posthumous conception, and (3) support.

In this case, it appears that the Claimant cannot meet any of the Woodward requirements for posthumously conceived children based on the evidence submitted to date. We believe that the Massachusetts courts would find that the Claimant could not inherit from the NH as her child under the Massachusetts intestacy laws and Woodward requirements. Accordingly, the Claimant does not appear to be eligible for benefits.

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.

III. Background

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

Federal 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 (2006); POMS

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).^[1] 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.

Massachusetts Law

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.^[2] 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.”^[3] 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.

V. Analysis

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 short.

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. See id.

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.

VI. Conclusion

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

The NH and D~ entered into a Vermont same-sex civil union in 2000. D~ gave birth to the claimant in 2002. There is no evidence that the NH donated ova and the source of the sperm with which the claimant was conceived is not known; therefore, the NH’s relationship to the claimant is not biological. In June 2006, the NH and D~ were validly married in Massachusetts. Later, the NH and D~ divorced in April 2008.

If the claimant establishes he has inheritance rights under Massachusetts state intestacy laws, he will be deemed the NH’s “child” under the Act. The claimant was born during D~ and NH’s Vermont civil union. Massachusetts courts considers the civil union as the equivalent of a marriage in Massachusetts. This means, the claimant is recognized as a child born of a marriage between the NH and D~. Other facts that support the finding that the claimant is the NH’s legal child is that the NH is listed on the birth certificate, the separation agreement refers to the NH as a parent and the NH is granted custody and visitation rights, and the NH pays child support. For these reasons, the claimant is considered the child of the non-biological parent (NH) for purposes of determining eligibility for child’s insurance benefits under the Act.

Issue

You asked whether a child-parent relationship exists between E~ (NH) and C~ (claimant) for purposes of determining the claimant’s entitlement to CIB under Title II of the Social Security Act (Act). The NH was in a Vermont civil union with the claimant’s biological mother, D~, at the time the claimant was born. The NH currently lives in Massachusetts.

Short answer

We believe the claimant would be considered the child of the non-biological parent for purposes of eligibility for auxiliary child’s benefits.

Background

The NH and D~ entered into a Vermont civil union on September XX, 2000.^[4] D~ gave birth to the claimant on August XX, 2002. There is no evidence to indicate that the NH donated ova. Thus, the NH’s relationship to the claimant is not biological. The source of the sperm with which the claimant was conceived (anonymous donor or otherwise) is not known. The NH did not adopt or attempt to adopt the claimant. The claimant’s birth certificate lists the NH as his other parent. On June XX, 2006, D~ and the NH were married in I~, Massachusetts. This marriage was valid under Massachusetts law, which has recognized same-sex marriages since May 2004.^[5] The Commonwealth of Massachusetts Probate and Family Court granted the NH and D~ a divorce on April XX, 2008.

The NH began receiving social security disability benefits in January 2008. In 2009, the claimant filed for child’s benefits on the NH’s record. The agency denied the claim based on a finding that the claimant was not related to the NH. On August XX, 2013, the claimant again filed an application for benefits on the NH’s record.

Applicable Law and Analysis

Federal Law

A claimant may be entitled to CIB under section 202(d)(1) of the Act, if he or she (1) is the “child” of an insured individual NH, as defined in section 216(e) of the Act, and (2) was dependent on the insured individual at the time the application was filed. See Act § 202(d)(1)(C)(i). In determining whether a claimant qualifies as the child of the NH, the Commissioner applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application.”^[6] See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”). Thus, if a claimant establishes that he would have inheritance rights under state intestacy laws, he is deemed the insured’s “child” under the Act. Since the NH is domiciled in Massachusetts, we apply Massachusetts intestacy law to determine whether the claimant is NH’s child for the purposes of the Act.

State Law

Massachusetts inheritance law is codified in the recently adopted Massachusetts Uniform Probate Code (MUPC). Mass. Gen. Laws Ann. Ch. 190B, §§ 1-101 to 7-503. Under the MUPC, the definition of a child “includes an individual entitled to take as a child under this chapter by intestate [without a will] succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.” Mass. Gen. Laws Ann. Ch. 190B, § 1-201(5). The law further provides that “[t]he parent and child relationship may be established under applicable state law” including through adoption. Mass. Gen. Laws Ann. ch. 190B, § 2-114 (emphasis added). Thus, if Massachusetts law has established a parent-child relationship, the child will be entitled to inherit and, relevant here, would be considered a natural child of the parent under 20 C.F.R. § 404.355.

The Massachusetts Appeals Court has considered when the biological child of a party to a same-sex marriage is considered the legitimate child of the other party to the marriage. Della Corte v. Ramirez, 961 N.E.2d 601, 602-03 (Mass. App. Ct. 2012). The court held that “when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage.” Id. at 603; see also Mass. Gen. Laws Ann. ch. 209C, § 6(a)(1) (“a man is presumed to be the father of a child . . . if: he is or has been married to the mother and the child was born during the marriage”).

Similarly, the Massachusetts General Laws provide that “[a]ny child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.” Mass. Gen. Laws Ann. ch. 46, § 4B. In interpreting that rule, the Massachusetts Appeals Court explained that it did “not read ‘husband’ to exclude same-sex married couples, but determine[d] that same-sex married partners are similarly situated to heterosexual couples in these circumstances.” Della Corte, 961 N.E.2d at 603.^[7]

Massachusetts courts recognize a civil union under Vermont law as the equivalent of a marriage in Massachusetts. Elia-Warnken v. Elia, 972 N.E.2d 17, 21 (Mass. 2012). Thus, because the claimant was born during the NH and D~ ’s Vermont civil union, Massachusetts courts would recognize the claimant as a child born of a marriage between the NH and D~. Della Corte, 961 N.E.2d at 602-03; see also Hunter v. Rose, 975 N.E.2d 857, 859 (Mass. 2012) (holding in a child custody dispute that parties to a California domestic partnership “have rights and responsibilities identical to those of marriage”).

The court in Della Corte also identified several other “salient facts” that supported the finding that the child in question was the legal child of the non-biological parent. Della Corte, 961 N.E.2d at 603. These included the facts that: (1) the non-biological parent was listed as a parent on the child’s birth certificate; (2) the parties’ separation agreement referred to the non-biological parent as a parent and granted her custody and visitation rights; (3) the non-biological parent admitted that the child was a child of the marriage; and (4) the non-biological parent paid child support to the biological parent. Id. Each of these factors is present in this case. The NH and D~ were both listed as parents on the claimant’s birth certificate. See id. (“The facts contained on a birth certificate ‘shall be prima facie evidence of the facts recorded.’” (quoting Mass. Gen. Laws c. 46 § 19)). The separation agreement, which both parties signed, identifies the claimant as a “child of the marriage.” (Exhibit at 1). The separation agreement also grants the NH custody and visitation rights (Exhibit 9-14) and requires that she pay child support to D~ (Exhibit 15-16).

For these reasons we believe that under Massachusetts inheritance law, the claimant would be considered the NH’s child for intestate inheritance purposes.

Conclusion

Under Massachusetts inheritance laws the claimant could inherit as the NH’s child if the NH were to die intestate. Accordingly, we conclude that the claimant should be viewed as the NH’s “child” for the purposes of determining eligibility for child’s insurance benefits under the Act.

Christopher A. Michaels

Acting Regional Chief Counsel

By: Molly E. Carter

Assistant Regional Counsel

The claimant is entitled to Child’s Insurance Benefits as the Number Holder’s (NH) child because a child-parent relationship is established for purposes of Title II of the Act. The NH was married to the claimant’s biological mother at the time of the claimant’s birth. Under Massachusetts inheritance laws, the claimant could inherit as the NH’s child if the NH were to die intestate. Accordingly, we conclude that the claimant should be viewed as the NH’s “child” for the purposes of determining eligibility for child’s insurance benefits under the Act.

ISSUE

You asked whether a child-parent relationship exists between H~ (NH) and J~ (claimant) for purposes of determining the claimant’s entitlement to CIB under Title II of the Social Security Act (Act). The NH was married to the claimant’s biological mother at the time of the claimant’s birth.

SHORT ANSWER

Yes. The claimant is entitled to CIB as the NH’s child because a child-parent relationship is established for purposes of Title II of the Act.

BACKGROUND

The NH and K~ (K~) were married in March 2008, in Boston, Massachusetts. Their marriage is valid under Massachusetts law, which has recognized same-sex marriages since 2004. ^[8] More than five years after the couple married, on June 5, 2013, K~ gave birth to the claimant. The claimant’s birth certificate lists K~ as her “mother/parent” and the NH as her “father/parent.”

The NH began receiving Social Security disability benefits in May 2009. The NH filed a claim for CIB on behalf of the claimant in October 2013 with a protective filing date of August 30, 2013.

ANALYSIS

The Act and Regulations

A claimant may be entitled to CIB under section 202(d)(1) of the Act, if he or she (1) is the “child” of an insured individual NH, as defined in section 216(e) of the Act, and (2) was dependent on the insured individual at the time the application was filed. See Act § 202(d)(1)(C)(i). In determining whether a claimant qualifies as the child of the NH, the Commissioner applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application.” ^[9] See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”). Thus, if a claimant establishes she has inheritance rights under state intestacy laws, she is deemed the insured’s “child” under the Act. Since the NH is domiciled in Massachusetts, we apply Massachusetts intestacy law to determine whether the claimant is NH’s child for the purposes of the Act.

State Law

Massachusetts inheritance laws are codified primarily in the recently adopted Massachusetts Uniform Probate Code (MUPC), which is located in Section 190B of the Massachusetts General Laws. ^[10] Under the MUPC, a child is defined as including “an individual entitled to take as a child under this chapter by intestate [without a will] succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.” Mass. Gen. Laws Ann. ch. 190B, § 1-201(5). Section 2-114, which discusses intestate succession, provides, in pertinent part that “[t]he parent and child relationship may be established under applicable state law” including through adoption. Mass. Gen. Laws Ann. ch. 190B, § 2-114 (emphasis added). Thus, if a child-parent relationship has been established under Massachusetts law, then that child will be entitled to inherit property when the parent dies without a will and, for our purposes, will be considered a child under the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1)

In determining whether a child-parent relationship exists under similar facts, ^[11] the Massachusetts Appeals Court has ruled that a child born to a same-sex couple during the marriage is automatically the legitimate child of both parties. See Della Corte v. Ramirez, 961 N.E.2d 601, 603 (Mass. 2012) (“when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage.”); see also Mass. Gen. Laws Ann. ch. 209C, § 6(a)(1) (“a man is presumed to be the father of a child . . . if: he is or has been married to the mother and the child was born during the marriage”)

Similarly, the Massachusetts General Laws provide that “[a]ny child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.” Mass. Gen. Laws Ann. ch. 46, § 4B. In interpreting that rule, the Massachusetts Appeals Court explained that it did “not read ‘husband’ to exclude same-sex married couples, but determine[d] that same-sex married partners are similarly situated to heterosexual couples in these circumstances.” Della Corte, 961 N.E.2d at 603^[12] .In Della Corte, as in this case, both same-sex parents’ names appeared on the birth certificate. Id. In Della Corte, the Court considered this point “salient” and asserted that “[t]he facts contained on a birth certificate ‘shall be prima facie evidence of the facts recorded.’” Id. (quoting Mass. Gen. Laws Ann. ch. 46, § 19).

Here, more than five years after the NH and K~ married, K~ gave birth to the claimant and the claimant’s birth certificate lists the NH and K~ as her parents.^[13] Thus, under Massachusetts inheritance law (which also encompasses general parent-child law in the State), we believe the claimant would be considered the child of the NH. As the claimant can establish that she has inheritance rights as the NH’s child under state intestacy laws, she is deemed the insured’s “child” under the Act.

CONCLUSION

Under Massachusetts inheritance laws the claimant could inherit as the NH’s child if the NH were to die intestate. Accordingly, we conclude that the claimant should be viewed as the NH’s “child” for the purposes of determining eligibility for child’s insurance benefits under the Act.

Christopher Michaels

Acting Regional Chief Counsel

By: Candace Lawrence

Assistant Regional Counsel