Intestate Succession and Reproductive Technologies in Arkansas

Buckley Bridges recently published his case note entitled Statutory Misconception:  The Arkansas Supreme Court’s Method in Finley v. Astrue Sets New Precedent for Uncertainty, 63 Ark. L. Rev. 419 (2010).  The introduction is below:

Finley v. Astrue set two precedents on the issue of intestate succession and reproductive technologies in Arkansas. The narrow issue before the Finley court was whether “a child, who was created as an embryo through in vitro fertilization during his parents’ marriage, but implanted into his mother’s womb after the death of his father, [could] inherit from the father under Arkansas intestacy law as a surviving child.” To answer that substantive question in the negative, the court used a novel method of statutory interpretation, thereby setting two precedents in one succinct opinion.

Finley is unique, both factually in Arkansas and nationally in its method of decision. This uniqueness will undoubtedly create shockwaves in the rapidly developing and ever-changing landscape of assisted reproduction technology in Arkansas and states faced with similar cases of first impression looking for guidance. Before Finley, some commentators assumed, apparently erroneously, that Arkansas allowed posthumous children–those created as a zygote prior to a parent’s death but born after with the aid of reproductive technology–to inherit from their deceased fathers. These commentators relied on a plain reading of an Arkansas intestacy statute that no Arkansas appellate court had interpreted prior to Finley.

In analyzing Finley v. Astrue, this case note examines how the plain meaning of the statute failed the above-referenced commentators. Quite simply, the court made the wrong decision. In reaching this conclusion, this case note scrutinizes the Arkansas Supreme Court’s method of statutory interpretation to offer a prediction as to how the court is likely to determine similar questions in the future. In addition, it proposes a normative method of applying old statutes to new technologies. In order to achieve these goals, it provides both the history of the Finley case and the state history of reproductive technology statutes, and then it analyzes the various methods of statutory application to emerging reproductive technologies.