LINCOLN — When Joshua Amen learned that he had cancer, he did what a lot of men facing possible sterilization via cancer treatments do: He had some of his sperm preserved so he and his then-fiance, Melissa, could someday have children.
The couple, who lived in Omaha, married in 2004.
When Joshua’s cancer was in remission they underwent fertility treatments and intrauterine insemination using the preserved sperm.
Joshua died in November 2006 but Melissa, at her husband’s request, didn’t give up.
A week after his death, she underwent another artificial insemination procedure.
In August 2007, she gave birth to a child.
But on Friday, the Nebraska Supreme Court ruled that a child must be conceived before a father’s death to be considered an heir.
The ruling means the child will not qualify for Social Security survivor benefits.
The case pitted modern technology, which allows preservation of sperm for years after a donor’s death, against laws written years before such technology existed. Nebraska’s law, for instance, was passed in 1973.
A Boston attorney who represented the mother said Congress ought to set a federal standard for when children conceived through artificial insemination after a father’s death can be considered heirs.
Laws vary from state to state, said Maureen McBrien, a lawyer who specializes in fertility law. She said the variance creates a question of equal treatment under the law.
California, for instance, allows such a child to qualify as an heir as long as he or she was conceived within 24 months of the father’s death and there was written consent to keep trying to conceive through artificial insemination, McBrien said.
“Technically, a child in one state can get a federal benefit where a child in another state can be denied,” she said. “This is a question that’s not been answered head-on by any court.”
Friday’s ruling was prompted after the Social Securities Administration denied an application for survivor benefits.
Melissa Amen appealed in U.S. District Court, and that court asked the Nebraska Supreme Court to answer a question of state law: Can a child, conceived after the death of a biological father but born within nine months of his death, inherit from him?
McBrien said the court could have ruled in the mother’s favor because the child was born within nine months of his death.
But the Nebraska court did not, saying the law here was “plain, direct and unambiguous.”
McBrien had cited a ruling in 2000 by a New Jersey court. The judge in that case decided that because state legislators there intended for such offspring to be cared for after the death of a father, a pair of twins — born 18 months after the death of their father — deserved to be considered heirs.
But Nebraska’s ruling, written by Supreme Court Judge Michael McCormack, stated the court was bound by the ordinary meaning of state law, regardless of the adverse impact on the child.
“Unlike the New Jersey trial court decision ... we cannot ignore the (Nebraska) statute’s literal meaning to create a favorable result” for the child, the judge wrote.
Courts in four other states, the ruling stated, have reached similar conclusions.
McBrien said her client, who now lives and works in Lincoln, will suffer an economic hardship because she is a single mother and her child, now 5, will not receive the monthly Social Security benefits due to a child who loses a parent.
“There’s really no more deserving person than her,” McBrien said. “This is not someone relying inappropriately on a federal benefit. This is someone who works, her late husband paid into the system diligently, and the system is designed to protect offspring.”
In the New Jersey court ruling, the judge noted that a prospective mother needs to consider “very carefully” the consequences of bringing a child into the world without a father.
That is a consideration, McBrien said, but the law also should consider the wishes of couples who want children even after the father dies.
She pointed out that the date of conception of Melissa Amen’s child could have occurred prior to her husband’s death had her fertility cycle peaked then rather than a week later.
“If a father consented to this, paid into the system and then tragically died, why should the child be treated differently due to the timing of the conception?” McBrien said.
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