Pamela Mattison was married to Jeffrey Mattison, who suffered from lupus, diabetes, high blood pressure, and kidney failure. Because chemotherapy for the treatment of lupus would affect Jeffrey’s sperm, Jeffrey interrupted his chemotherapy and deposited his semen into a sperm bank, where it was frozen and stored. On May 18, 1998, Jeffrey executed a “General Durable Power of Attorney” which appointed Pamela as his attorney-in-fact with certain powers to be exercised in his name and for his benefit, including the power to “take any and all action necessary pertaining to any sperm or embryos I may have stored including their implantation or termination.” After Jeffrey’s death, Pamela Mattison conceived via in vitro fertilization, using her husband’s banked sperm, and gave birth to twins on October 8, 2001.
On October 23, 2001, Mattison, on behalf of her twins, filed an application for Social Security survivor’s benefits based on her husband’s earnings. The Social Security Administration denied the application and all Mattison’s appeals; Mattison filed a lawsuit in the United States District Court for the Western District of Michigan, challenging the Commissioner of Social Security’s final decision. The parties agreed that the determinative issue is whether the twins can inherit from Jeffrey Mattison as his children under Michigan intestacy law; the U.S. District Court certified the question to the Michigan Supreme Court – in other words, asked the Court to settle the issue as a matter of Michigan state law. The issue is one of first impression in Michigan, meaning that the Supreme Court has not ruled on this question before.
Under the Social Security Act, an applicant for child’s benefits must demonstrate that he or she is the “child” of the deceased wage earner and was dependent or may be deemed dependent upon the deceased wage earner at the time of the wage earner’s death. In determining whether the applicant is the deceased’s “child,” the Commissioner of Social Security “shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State . . . in which [the insured individual] was domiciled at the time of his death.” 42 USC § 416(h)(2)(A). The U.S. Supreme Court recently ruled in Astrue v Capato, U.S. Supreme Court No. 11-159, that the question whether posthumously conceived children qualify for Social Security survivor’s benefits must be determined under state intestacy law.
The Social Security Administration maintains that Michigan law excludes children conceived posthumously from intestate succession. Under Michigan’s Estates and Protected Individuals Code, “[a]ny part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this act,” MCL 700.2101(1). MCL 700.2103 states “Any part of the intestate estate that does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes … to … individuals who survive the decedent.” MCL 700.1107(j) defines “survive” to mean that “an individual neither predeceases an event, including the death of another individual, nor is considered to predecease an event under section 2104 or 2702.” MCL 700.2106(3)(b) defines “surviving descendent” to mean “a descendent who neither predeceased the decedent nor is considered to have predeceased the decedent under section 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 decedent’s heirs are determined accordingly.” According to the SSA, these provisions mean that an individual must be both alive at the time of the decedent’s death and survive the decedent in order to inherit intestate. Because the twins were conceived after Jeffrey Mattison’s death, they did not “survive” him and so cannot inherit intestate, the SSA contends.
MCL 700.2108 allows children born after a parent’s death to inherit intestate – but that section requires that the children be “in gestation” at the time of the parent’s death, the SSA notes. While EPIC permits children conceived through reproductive technology to inherit, that provision is limited to children conceived or born “during a marriage,” and the Mattisons’ marriage ended with Jeffrey Mattison’s death, the SSA argues.
But Pamela Mattison argues that the twins were in fact conceived “during a marriage”; although the actual meeting of sperm and egg took place after her husband’s death, the process of conceiving the children began many months earlier, with Jeffrey Mattison suspending chemotherapy to donate sperm and with Pamela Mattison undergoing various procedures, including hormone injections administered by her husband, Mattison contends.
Mattison also points to MCL 33.2824(6), which provides that a “child conceived by a married woman with the consent of her husband following the utilization of assisted reproductive technology is considered to be the legitimate child of the husband and wife.” Jeffrey Mattison consented to the use of reproductive technology through his durable power of attorney and by assisting in the conception process, Pamela Mattison argues, so the law should treat the children as being entitled to inherit. Moreover, if an estate had been opened for her husband, the twins would be considered his heirs; similarly, if a paternity action were filed on the children’s behalf, the law would recognize Jeffrey Mattison as the father, Mattison reasons.
In a September 21 order, the Supreme Court agreed to hear oral argument on whether to answer the certified question. The Court directed the parties to address “whether Michigan’s afterborn heirs statute, MCL 700.2108, is determinative of the question.”