Not without My Father: The Legal Status of the Posthumously Conceived Child

Article excerpt

I. INTRODUCTION

Twins Amanda and Elyse were born to William and Mariantonia Kolacy of New Jersey on November 3, 1996.1 At this ordinarily joyous occasion, only Mariantonia was able to welcome the two girls into the world; their father, William, had passed away some eighteen months before their birth-nearly a year before the girls were conceived.2

When William and Mariantonia were a young married couple, doctors diagnosed William with leukemia and advised him to begin chemotherapy immediately.3 Fearing the treatment or the disease would render him sterile, William preserved some of his sperm for later use.4 Regrettably, William did not survive the disease and died on April 15, 1995, at the young age of twenty-six.5 Nearly a year later, on April 3, 1996, Mariantonia underwent an in vitro fertilization procedure in which William's sperm was united with her eggs, and the resulting embryos were implanted into her uterus.6 Some seven months later, on November 3, 1996, Amanda and Elyse were born7 into the world and into a legal conundrum: despite being William's undisputed genetic offspring, whether they had a right to be legally recognized as his children faced great uncertainty.8

This uncertainty surfaced when the Social Security Administration denied Mariantonia's petition to obtain dependent benefits IMAGE FORMULA50

for Amanda and Elyse based on William's Social Security contributions during his life.9 The Administration denied the petition because the girls did not qualify as dependents under the Social Security Act,10 which, in part, provides that benefits "can be paid to a child who could inherit under the State's intestate laws."11 Under New Jersey law, children born after the father's death can inherit only if "conceived before his death."12 Since Amanda and Elyse were conceived almost a year after William died, a strict reading of the statute would leave them unable to claim heirship and, consequently, they would be denied the Social Security benefits to which dependents are normally entitled.13 In further pursuit of the children's claim for dependent benefits, Mariantonia sought to have Amanda and Elyse declared "among the class of persons who are ... intestate heirs"14 of William under New Jersey law. Searching in vain for guidance, the court was unable to find any "American appellate court decisions dealing with [the] central issue" of the legal status of children conceived posthumously.15 Despite this void, the court reasoned that the children were nonetheless "entitled to have their status as heirs of their father determined for a variety of state law purposes,"16 and accordingly, recognized Amanda and Elyse as the legal heirs of William.17

The Kolacy case exemplifies an important legal problem created by advances in technology. In the past, conception was possible only through sexual intercourse, thus death represented the ultimate finality.18 Today, new reproductive technologies have made IMAGE FORMULA53

noncoital reproduction commonplace and have even made it possible to conceive from the grave.19 Posthumous conception-the application of reproductive technology to conceive a child after the death of one or both of the genetic parents-would certainly have seemed oxymoronic only a short time ago.20 Today, however, it is a real matter that creates doubt about the legal status of this unique class of children.21

To date, the Kolacy case is one of only three reported cases involving actual posthumous children.22 Yet, while the legal status of posthumous children is a seemingly exceptional concern, it will not remain so. By some estimates, roughly 2.3 million couples in the United States seek some form of treatment for infertility problems every year.23 At least 40,000 of these couples use some type of assisted reproductive technology.24 Viewed in the context of reproductive technology's historical growth, the situation becomes immediately more striking. …