A probate law passed before the birth of the first test-tube baby does not allow a child conceived through in vitro fertilization to inherit from a father who died before he was born, the Arkansas Supreme Court has ruled.

The court interpreted the law at the request of a federal judge handling a death benefits case filed by the child's mother, Amy Finley. Her husband died in July 2001 without leaving a will and, after using previously frozen embryos created with her eggs and his sperm, she gave birth in March 2003.

Ark. Code Ann. Section 289210(a) provides that “Posthumous descendants of the intestate conceived before his or her death but born thereafter shall inherit in the same manner as if born in the lifetime of the intestate.”

The statute does not define the word “conceived,” but Finley argued that her child was conceived at the time her egg was fertilized in vitro with the father's sperm. That conforms to the medical definition of conception as “The formation of a viable zygote by the union of a spermatozoon and an ovum.”

The Social Security Administration, which denied Finley's benefits claim, said “conception” as used in Arkansas's intestacy law means the onset of pregnancy or the successful implantation of an embryo in the womb.

But in an advisory opinion, the state Supreme Court did not choose either of the parties' definitions because “we can definitively say that the General Assembly ... did not intend for the statute to permit a child, created through in vitro fertilization and implanted after the father’s death, to inherit under intestate succession.”

“Not only does the instant statute fail to specifically address such a scenario,” the court continued, “but it was enacted in 1969, which was well before the technology of in vitro fertilization was developed.” Louise Brown, the first test-tube baby, was born in 1978.

Finley also invoked a statute which says, “Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession.” But Justice Paul E. Danielson, writing for the court, said the law did not refer to the “completely different” procedure of in vitro fertilization.

In the first U.S. case on point, the Massachusetts Supreme Judicial Court held that under limited circumstances, posthumously conceived children have inheritance rights under state intestacy law. Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (2002).

Danielson indicated some dissatisfaction with the current state of Arkansas law. “[W]e strongly encourage the General Assembly to revisit the intestacy succession statutes to address the issues involved in the instant case and those that have not but will likely evolve,” he said.

By Matthew Heller
1/14/08