OMAHA, Neb. (AP) — The Nebraska Supreme Court will weigh in on the question of whether children conceived through artificial insemination after the death of a parent can get Social Security survivor benefits.
The state’s high court is set to hear arguments next month in the case of an Omaha woman, Melissa Amen, whose daughter was conceived through artificial insemination about a week after the 2006 death of her husband and the child’s biological father, Josh Amen.
In May, the U.S. Supreme Court ruled that a Florida man’s children who were conceived through artificial insemination after his death cannot get Social Security survivor benefits, because that state’s inheritance laws expressly bar children conceived posthumously from inheritance.
The federal court in Nebraska has asked the state Supreme Court to determine whether Nebraska’s laws allow inheritance by a child conceived posthumously and born within nine months of the father’s death.
Melissa Amen filed a lawsuit against the Social Security Administration when it denied her requests for survivor benefits for her daughter.
According to court documents, the Amens were planning their wedding in 2004 when Josh learned he had an aggressive form of muscular cancer. He banked some of his sperm before beginning nearly a year of intense chemotherapy and radiation treatments. In 2005, court records say, Josh Amen was told he was cancer free, and the couple began fertility treatments using his saved sperm.
Some months after beginning those treatments, Josh Amen learned his cancer had returned. He died the day after Thanksgiving Day in 2006.
Melissa Amen continued her fertility treatments, and learned in December that she was pregnant.
She gave birth on Aug. 14, 2007, and applied for Social Security benefits for her daughter later that month. In 2010, an administrative law judge ruled that the child should receive benefits, but an appeals council of the federal agency reversed the judge’s finding and Melissa Amen sued.
Her attorneys argue that while Nebraska’s laws don’t specifically address the inheritance rights of children posthumously conceived, they do allow for posthumously born children to inherit, as long as paternity is established.
“Nebraska intestacy laws are entirely silent as to the rights of the posthumously conceived, and there is no evidence that the legislative intent was to preclude posthumously conceived children from inheriting,” Boston attorney Maureen McBrien wrote in her brief.
Even if Nebraska’s law is interpreted to apply only to those children conceived during the father’s lifetime, McBrien argues, an exception should be made for Amen’s child, because she was conceived and born within nine months of Josh Amen’s death — the same time frame as a naturally conceived child.
Attorneys for the federal agency dispute Amen’s arguments, noting that Nebraska law states plainly that “relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.”
“Plaintiffs fail to explain how (the law) can be read, even liberally, to include the posthumously conceived when that provision states that it applies to heirs ‘conceived before’ the decedent’s death,” Karen Seifert wrote in the Social Security Administration’s brief.
Seifert declined to answer questions about the case Thursday. McBrien did not immediately return a message left for her.
The state’s high court will hear arguments on Oct. 10.
