FRIDAY, Jan. 4, 2002 (HealthDayNews) -- Michayla and Mackenzie Woodward are 6-year-old twin girls whose births have set a legal precedent.
The twins were conceived approximately 16 months after their father died from cancer. Now, the Massachusetts Supreme Judicial Court in Boston has ruled that children conceived posthumously can be considered legal heirs. The ruling is thought to be a first of its kind.
The ruling, while incomplete, is long overdue, says one medical ethicist, who adds that it's time for federal legislation to bring the law up to speed with science.
The trouble started when the twins' mother, Lauren, applied for Social Security survivor benefits after the girls were born.
Warren and Lauren Woodward were married in 1989. In 1993, he was diagnosed with a rare form of leukemia. Knowing that the bone marrow transplant he faced could make him sterile, the couple chose to bank his sperm before the procedure.
"We also knew that [with] the type of leukemia that he had
the chances were not that great that he would survive," says his widow, who lives in Beverly, Mass. "We talked about, if he didn't, that it was fantastic that we had sperm banking."
Warren Woodward's therapy was not successful, and he died in October 1993. At the time, he had full coverage under the U.S. Social Security Act.
Using the sperm that her husband had banked before his death, Lauren Woodward conceived and gave birth to the twins in October 1995. In January of the following year, she applied for both child's and mother's survivor benefits.
The Social Security Administration (SSA) rejected the claim, saying that Woodward hadn't proven that the twins were her husband's children according to the act. Social Security benefits are based on state inheritance laws.
"I really got angry," recalls Woodward. "How can you say that legally he was not their father?"
After learning of similar cases of posthumous conception in Louisiana, California and New Jersey, Woodward decided to take her case to civil court.
"I believe that my children should receive what their father paid into," says Woodward. "He paid into Social Security; he wanted them, I wanted them. Legally, genetically, he is their father."
In October 1996, a probate and family court ruled that Woodward could add her deceased's husband's name to the twins' birth certificates.
However, the SSA continued to deny her claim. The SSA commissioner, citing a U.S. administrative law judge's ruling, said that the twins didn't qualify for benefits because they were not entitled to inherit from Warren Woodward based on Massachusetts' intestacy and paternity laws. These laws, which date back to 1836, covered children who were born, but not conceived, after a parent's death.
The case ended up in the Supreme Judicial Court, which on Jan. 2 ruled unanimously that the twins were Warren Woodward's legal heirs.
"Posthumously conceived children may not come into the world the way the majority of children do," wrote Chief Justice Margaret Marshall in the ruling. "But they are children nonetheless."
"I was just so happy," Woodward says of the ruling, adding that she couldn't imagine her children going through life without legally having a father. "I felt it was very discriminatory."
The ruling specified that in order to be considered legal heirs, children conceived after a parent's death must be genetically related to the parent and the parent must have agreed to conceive and support the child.
However, the court's ruling also raised the possibility that future laws should limit how long after a death a child can be conceived and still retain inheritance rights, since frozen sperm can be preserved and used after several years.
But the ruling noted that too short a limit would force a surviving widow to make a choice about children while still grieving. Moreover, the process of artificial insemination can't be guaranteed to work on the first try, and may require several months to establish pregnancy.
A representative of the Social Security Administration declined to comment on the ruling.
Woodward's case is still pending before a federal court, which will make the final determination on eligibility for Social Security benefits. She will have to make the argument that the twins meet the specifications for legal heirs.
"I don't believe I'll have a problem meeting those requirements," she says.
Woodward stresses that she's not asking for the state to subsidize her children.
"I work, I go to school, I support them myself," she says. "My husband and I had life insurance. I'm not on any type of public assistance."
She says that the law has failed to keep up with reproductive science. "They've known about artificial insemination. They've known about sperm banking," she says.
"It's scandalous," agrees Arthur Caplan, the director of the Center for Bioethics in Philadelphia. He suspects that legislators have avoided the reproductive technology area because it involves issues of reproductive freedom, abortion, the powerful infertility industry, and parents who desperately want children.
But he adds that, although he thinks the Boston court made the right decision, this is an area that should not be decided by courts.
"I don't want 50 courts coming up with 50 opinions based on nothing except judicial interpretation," he says. "This case was about eligibility for Social Security benefits -- that tells you that it's a federal issue."
"We're long overdue for some laws," Caplan adds. "We really need some legislation in North America governing what happens to reproductive materials, what happens generally in post-mortem situations, and what happens to protect the innocent children."
Caplan would like to see national legislation governing who can use post-mortem sperm donation, including exactly what kind of consent is required to establish that a deceased man wanted his sperm used in artificial insemination. For example, he says, such legislation should establish whether the man can choose how his sperm will be used, including whether to limit the number of embryos created.
Congress must address a variety of scenarios, Caplan adds, such as what happens to a fertilized embryo if both parents die unexpectedly.
What To Do
To find out more about infertility, check out the American Society for Reproductive Medicine Web site.
Read the Nuts and Bolts of Bone Marrow Transplants to find out about infertility after this therapy.
You can also check out the Social Security Administration's survivor benefits information.
