IN RE CERTIFIED QUESTION FROM U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN MICHIGAN…

IN RE CERTIFIED QUESTION FROM U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN MICHIGAN SUPREME COURT 825 N.W. 2D 566 (MICH. 2012) Pamela and Jeffery Mattison were married in 1995. In 1997, Pamela became pregnant with the aid of artificial insemination and gave birth to a daughter. Pamela and Jeffery wanted more children but were unable to conceive naturally because of Jefferys medical conditions, which included lupus. Because chemotherapy treatment for lupus would damage Jefferys sperm, he interrupted his chemotherapy treatment and deposited his semen into a sperm bank, where it
IN RE CERTIFIED QUESTION FROM U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN MICHIGAN SUPREME COURT 825 N.W. 2D 566 (MICH. 2012) Pamela and Jeffery Mattison were married in 1995. In 1997, Pamela became pregnant with the aid of artificial insemination and gave birth to a daughter. Pamela and Jeffery wanted more children but were unable to conceive naturally because of Jefferys medical conditions, which included lupus. Because chemotherapy treatment for lupus would damage Jefferys sperm, he interrupted his chemotherapy treatment and deposited his semen into a sperm bank, where it was frozen and stored. Soon after the birth of his daughter, Jeffery executed a general durable power of attorney that appointed Pamela as his attorney-in-fact. Included among the powers given to her was the authority to take any and all action necessary pertaining to any sperm or embryos Jeffery may have stored including their implantation or termination. In October 2000, Pamela and Jeffery began an in vitro fertilization program. Jeffery died unexpectedly in January 2001. Pamela continued the in vitro fertilization program after his death. Pamelas eggs were inseminated with Jefferys sperm and transplanted into Pamela later in January 2001. As a result of the transplantation process, Pamela gave birth to twins in October 2001. In October 2001, Pamela filed an application for social security survivors benefits based on Jefferys earnings records on behalf of her twins. The Social Security Administration denied the application on the basis that the twins were not entitled to inherit from Jeffery under Michigan intestacy law. Pamela filed a lawsuit against the Social Security Administration in August 2005 in the US District Court for the Western District of Michigan. The district court certified the following question to the Michigan Supreme Court for determination: Whether the twins, conceived after the death of Jeffery Mattison via artificial insemination using his sperm, can inherit from Jeffery Mattison as his children under Michigan intestacy law. JUSTICE KELLY_The Social Security Act authorizes disbursement of survivors benefits for children who were dependent on a deceased worker before his or her death. As the United States Supreme Court has noted, the purpose of providing survivors benefits is to protect children from a loss of support resulting from the death of a parent. However, not all children of a deceased parent are eligible for these benefits. To be eligible, an applicant must demonstrate that he or she (1) is the child of the deceased wage earner and (2) was dependent on that person at the time of that persons death. The United States Supreme Court recently spoke on this subject in the case of Astrue v Capato, 132 S. Ct. 2021 (2012). The respondents husband had died 18 months before she gave birth to twins conceived through in vitro fertilization using the decedents frozen sperm. The respondent applied for social security survivors benefits on their behalf. When the Social Security Administration denied her application, she brought an action in the courts to review the decision. . . . The United States Supreme Court . . . held that the question whether posthumously conceived children qualify for social security survivors benefits must be determined under state intestacy law. Michigan law has long established that the rights to intestate inheritance vest at the time of a decedents death. They are governed by statutory provisions found in article II, part 1 of the Estates and Protected Individuals Code (EPIC). Several EPIC provisions bear on whether plaintiffs twins can inherit from Jeffery. The first, MCL 700.2101(1), provides that [a]ny part of a decedents estate not effectively disposed of by will passes by intestate succession to the decedents heirs as prescribed in this act. . . . Next, MCL 700.2103 provides that [a]ny part of the intestate estate that does not pass to the decedents surviving spouse . . . passes . . . to [certain] . . . individuals who survive the decedent. MCL 700.1107(j) defines survive as meaning that an individual neither predeceases an event, including the death of another individual, nor is considered to predecease an event. Random House Websters College Dictionary (2001) similarly defines survive as, among other things, 1. to remain alive, as after the death of another or the occurrence of some event; continue to live . . . 4. to continue to live or exist after the death, cessation, or occurrence of. Thus, to survive the death of another, one must be living at the time of that persons death. Likewise, MCL 700.2106(3)(b) defines surviving descendant as a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent under [MCL 700.2104]. MCL 700.2104 states, An individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of . . . intestate succession, and the decedents heirs are determined accordingly. Hence, an individual must be alive when the decedent dies and live more than 120 hours afterward to inherit from the decedents estate under the laws of intestate succession.Also relevant is MCL 700.2108 which states, An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. Finally, MCL 700.2114(1)(a) provides, in pertinent part: If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. On the basis of these provisions, there are two groups of people relevant to this case that may acquire intestate inheritance rights: (1) descendants alive at the moment of the decedents death who live more than 120 hours immediately following the decedents death and (2) descendants in gestation at the time of the decedents death who live 120 hours after birth. Considering these statutes, plaintiffs twins cannot inherit from Jeffery by intestate succession. The record shows that plaintiffs eggs were not inseminated with Jefferys sperm and implanted until January 30, 2001, which was 12 days after Jeffery died. Because plaintiffs twins were not in gestation at Jefferys death, no inheritance rights vested in them at that time pursuant to MCL 700.2108. Moreover, because the twins were not living at the time of his death, they had no inheritance rights as heirs pursuant to MCL 700.2104. Nor does MCL 700.2114(1)(a) allow the twins to inherit from Jeffery. That statute indicates that, for purposes of intestate succession, a child is presumed to be the natural issue of both spouses if born or conceived during the marriage. It includes in that presumption children conceived by a married woman with the consent of her husband following the use of assisted reproductive technology. Applying that provision here, the twins were neither conceived nor born during plaintiff and Jefferys marriage because marriage is a status that legally terminates upon the death of a spouse. Accordingly, the twins are not Jefferys children for purposes of the state laws of intestate succession and, therefore, they cannot inherit from him. In sum, nothing in EPIC or in other relevant statutory provisions contemplates intestate succession rights for plaintiffs twins. Because they were conceived and born after Jefferys death, they did not survive him as his heirs in the eyes of the law. Therefore, we answer the certified question in the negative. Judgment against the Plaintiffs claim that intestate succession rights extend to twins conceived after the death of the father. CRITICAL THINKING What was the basis for the courts determination that the twins were not Jefferys heirs and thus could not inherit from him pursuant to applicable Michigan law? Is this the correct decision in this case given that other states would have decided this case differently on the basis of their laws? Should there be a national standard given these differences? ETHICAL DECISION MAKING The law has been slow to adapt to scientific and technological breakthroughs. How should courts deal with questions presented by scientific and technological developments that are far ahead of legal developments?

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