LANSING, Mich. -- A case of whether children conceived through in
vitro fertilization after a parent's death can receive Social Security
benefits comes before the Michigan Supreme Court on Thursday.
Jeffrey Mattison of Portage, Mich., got sick, he froze some of his
sperm so the chemotherapy he was about to undergo wouldn't prevent he
and his wife Pamela from having more children.
When Mattison died
in 2001, his wife used the banked sperm and conceived twins -- Mallory
and Michael -- who were born about 10 months after their father's death.
now, the Social Security Administration is refusing to treat the twins
as Jeffrey Mattison's heirs and grant them survivor benefits of a few
hundred dollars a month, based on Mattison's earnings, saying the
children didn't "survive" their dad because they were conceived after
This case is the first of its kind in Michigan, and one of only a handful of similar cases across the country.
one example of a raft of new legal issues that have emerged surrounding
in vitro fertilization. For example, if a couple with frozen embryos is
divorced, who gets them?
"A lot of these situations are so new
that the law has not caught up with the science," said Joan Coulter, a
family law attorney in St. Louis who has handled similar cases.
"We're making new law here, and it's a pretty exciting time, if you're a lawyer."
attorney in the Michigan case, Victor Bland, noted Social Security is
paying survivor benefits to the twins' 14-year-old sister Jenna, who
also was conceived through in vitro fertilization, but before her
As a matter of fairness, "why shouldn't these kids get money?" he asked of the 11-year-old twins.
represents Pam Mattison -- whose husband was sick with lupus and other
ailments -- in what began in 2005 as a federal lawsuit. The case was
transferred to the Michigan Supreme Court because inheritance issues are
typically decided based on state law, rather than federal law.
few states, Massachusetts, New Jersey, Delaware and Iowa among them,
explicitly allow for inheritance by children posthumously conceived.
But Michigan doesn't. So if the principle of fairness is on the family's side, the letter of Michigan law is much less so.
State law says that for children to inherit they must "survive the decedent."
the individual is required to be alive at the time of the decedent's
death," attorneys for the Social Security Administration argue in court
"Posthumously conceived children do not meet this requirement, and thus cannot inherit ..."
the Mattison twins were conceived soon after their father's death, in
vitro technology allows similar situations to arise much later, creating
potential problems, legal experts say.
"Children may be conceived
posthumously several years after an individual's death, and waiting for
the potential birth of a posthumously conceived child could tie up
estate distributions indefinitely," the New Hampshire Supreme Court said
in a 2007 case.
Most states that allow inheritance for children
conceived posthumously allow it only under certain conditions, such as
when the deceased parent consents in writing, prior to death, to
conceiving a child after death.
Bland has Jeff Mattison's power
of attorney authorizing his wife to take "any and all action necessary
pertaining to any sperm or embryos I may have stored, including their
implantation or termination."
What Bland doesn't have is the
explicit provision in Michigan law: In 1998, lawmakers amended state law
to allow for inheritance by children the mother was pregnant with at
the time of the father's death.
That provision doesn't help Bland,
and the Social Security Administration argues it actually hurts the
case, since it shows the Legislature considered and amended state law
after the development of in vitro fertilization, and opted not to make a
special allowance for children conceived posthumously.
Bland argues conception shouldn't be defined solely by the moment when sperm meets egg, but is instead "a process."
the case of the Mattisons, that process spanned many months and Jeff
Mattison was alive for much of it, even injecting his wife with hormones
to assist the process the night before he died, Bland said.
is no basis for this interpretation of 'conception' in the state ...
statutes," the Social Security Administration replies.
Paul Egan, Detroit Free Press