A child conceived during marriage by in vitro fertilization and implanted in the mother’s womb after the father’s death is not the father’s heir

Ten embryos were produced through IVF using the husband’s sperm and his wife’s ova.  Two embryos were implanted in the wife’s uterus but the pregnancy terminated in a miscarriage.  Approximately one month later, the husband died intestate.  Eleven months after his death, two embryos were implanted in his wife’s uterus resulting in the birth of a child twenty months after the husband’s death.  The mother appealed a denial of her claim for Social Security benefits for herself and for the child to the Federal District Court which certified to the Arkansas Supreme Court the question of whether the child is the father’s heir. 

In Finley v. Astrue, No. 07-627, 2008 WL 95775 (Ark. Jan. 10, 2008), the court said no.  The Arkansas intestacy statute requires that a person be conceived before an intestate’s death to inherit.  Because the statute was enacted in 1969 long before the development of IVF technology, the legislature could not have intended a child created through IVF and implanted after a gamete donor’s death be an heir of the genetic parent.  The court expressly declined to define the term “conceive.”