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Kids who are conceived after death can be heirs

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BOSTON — Children conceived artificially after the father's death have the same inheritance rights as other youngsters, the state's highest court ruled unanimously last week.

"Posthumously conceived children may not come into the world the way the majority of children do. But they are children nonetheless," Chief Justice Margaret Marshall wrote in the 7-0 decision.

For inheritance rights in such cases, the mother must prove a genetic relationship between the father and child and establish that the father consented to posthumous conception and agreed to support his child, the Supreme Judicial Court ruled.

Most states have laws granting rights to children born after the father's death if the child is conceived before the death, but they do not address the rights of children born through posthumous conception, according to the American Society for Reproductive Medicine.

The ruling is believed to be the first on the issue by any state supreme court.

A California court ruled in 1993 that a deceased father's sperm was property that could be bequeathed to his girlfriend. A New Jersey woman's lawsuit seeking federal benefits for twins conceived through in vitro fertilization after her husband died is pending.

"We're really dealing with a whole new frontier for the legal community," said Mark J. Warner, a Boston attorney who specializes in family law. "It's obviously something that's been going on in the medical community for a very long time, but the courts are just now starting to wrestle with these issues."

In Massachusetts, the question came before the court in the case of Lauren Woodward, a mother from the city of Beverly who had twin girls using her husband's frozen sperm two years after he died of leukemia.

After the twins were born in 1995, Woodward applied for survivor benefits for her and her daughters, but her claim was rejected by the Social Security Administration.

Woodward sued in federal court. A federal judge then asked the Supreme Judicial Court to decide whether Massachusetts inheritance law grants posthumously conceived children the same rights as naturally conceived ones.

The high court was not asked to rule specifically on Woodward's case, so the dispute will return to a lower court. But the ruling clearly favors Woodward's position.

"These children should not be discriminated against based on the timing of their birth," said Woodward's attorney, Thomas C. Fallon.

Arguing for the Social Security Administration, Assistant U.S. Attorney George Henderson II said that Massachusetts law required heirs to be determined at the time of death. Since the Woodward children were born after their father's death, he said, they are not legally his heirs.

Before the ruling, Henderson had said a ruling in Lauren Woodward's favor could mean all sperm donors have the legal obligations that come with fatherhood, including child support. Afterward, he said the ruling had provided "some clarity to this area of the law" but more court proceedings may be needed to determine the effect on the case.