Post-Death Implantation Child Not Considered an Heir in Arkansas

The following is from John Lyon, Court: Embryo implanted in mother’s womb after father’s death not an heir, Arkansas News Bureau, Jan. 11, 2008:

A child conceived through in vitro fertilization but implanted in his mother’s womb after his father’s death is not automatically considered his father’s heir under Arkansas’ inheritance laws, the state Supreme Court said Thursday in an advisory opinion.

The court issued the opinion in response to a request from a federal judge in an Arkansas woman’s lawsuit against the Social Security Administration over its denial of her claim for “child’s insurance benefits.”

The Supreme Court noted that the state statute governing intestacy * * * was enacted in 1969, before the technology of in vitro fertilization was developed, and therefore does not address the issue.

Because the law predates the technology, “we can definitively say that the General Assembly … did not intend for the statute to permit a child, created though in vitro fertilization and implanted after the father’s death, to inherit under intestate succession,” Justice Paul Danielson wrote.

Danielson wrote that it is not the court’s role to create law, but he added that “we 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.”

Special thanks to Deborah Letz (attorney, San Antonio, Texas) and for bringing this case to my attention.