Finley v. Astrue

• Citation: 372 Ark. 103,270 S.W.3d 849
• Decision Date: 10 January 2008
• Docket Number: No. 07-627.,07-627.
• Parties: Amy FINLEY o/b/o Herself and W.F., A Minor Child, Petitioner, v. Michael J. ASTRUE, Commissioner, Social Security Administration, Respondent.
• Court: Supreme Court of Arkansas

270 S.W.3d 849

372 Ark. 103

Amy FINLEY o/b/o Herself and W.F., A Minor Child, Petitioner, v. Michael J. ASTRUE, Commissioner, Social Security Administration, Respondent.

No. 07-627.

Supreme Court of Arkansas.

January 10, 2008.

Kenneth E. Buckner, Pine Bluff, for appellant.

Jane Duke, Acting U.S. Att'y, by Stacey E. McCord, Ass't U.S. Att'y, Tina M. Waddell, Regional Chief Counsel, SSA, and Julia Denegre, Special Ass't U.S. Att'y, for appellee.

PAUL E. DANIELSON, Justice.

This case involves a question of law certified to this court by the United States District Court for the Eastern District of Arkansas in accordance with Ark. Sup.Ct. R. 6-8 and accepted by this court on June 28, 2007. See Finley v. Astrue, 370 Ark. 429, 260 S.W.3d 717 (2007) (per curiam). The question certified is the following:

Does 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, inherit from the father under Arkansas intestacy law as a surviving child?

We conclude that the answer to this question is no.

According to the District Court's order, the certified question arises from an appeal by Amy Finley, from the final decision of the Commissioner of the Social Security Administration, Michael Astrue (the Commissioner), which denied her claim for "child's insurance benefits" under 42 U.S.C. § 402(d).¹ The District Court's order reflects the following facts. On October 6, 1990, Ms. Finley and Wade W. Finley, Jr., were married. During the course of the marriage, the Finleys pursued fertility treatments at the University of Arkansas for Medical Sciences (UAMS), and, ultimately, participated in UAMS's In Vitro Fertilization and Embryo Transfer (IVF/ET) Program.² In June of 2001, doctors produced ten embryos using Ms. Finley's eggs and Mr. Finley's sperm. Two of the embryos were implanted into Ms. Finley's uterus and four embryos were frozen for preservation.³ Ms. Finley later suffered a miscarriage of both of the implanted embryos.

On July 19, 2001, Mr. Finley died intestate while domiciled here in Arkansas. A little less than one year later, on June 26, 2002, Ms. Finley had two of the previously frozen embryos thawed and transferred into her uterus, resulting in a single pregnancy. On February 14, 2003, prior to the child's birth, the Lonoke County Circuit Court entered an order providing that upon the baby's delivery,

the State Registrar of the Arkansas Department of Health, Division of Vital Records, shall enter and state upon the certificate of birth that Wade W. Finley, Jr., now deceased, is the father of [W.F.]; [a]nd that, thereafter, all State and Federal Agencies, of the United States of America, shall uphold the findings of this Court's conclusion of paternity—in [Plaintiff] the mother and Wade W. Finley, Jr. the father—for any and all lawful purposes; and, that [W.F.] is the legitimate child of [Plaintiff] and Wade W. Finley, Jr. for any and all lawful purposes.

The child was born on March 4, 2003, and on April 11, 2003, Ms. Finley filed a claim for mother's insurance benefits and the child's claim for child's insurance benefits, based on the earnings record of Mr. Finley. The claims were denied at the initial and reconsideration levels; however, an Administrative Law Judge (ALJ) issued a decision on June 16, 2006, awarding both mother's and child's insurance benefits.

On December 14, 2006, the Appeals Council reversed the ALJ's decision, finding that Ms. Finley's claims were without merit. Ms. Finley then filed her complaint with the District Court on October 13, 2006, appealing the final decision of the Commissioner. The parties filed a joint motion to certify the instant question of law to this court and to stay briefing before the District Court. The District Court granted the motion, certified the instant question to this court, and we accepted certification, as already stated.

In the briefs before us, Ms. Finley argues that her child was "conceived" at the time her egg was fertilized by the father's sperm. She contends that there is no statutory prohibition in Arkansas preventing a natural child who was conceived by in vitro fertilization from inheriting from his father. She avers that the General Assembly was aware of in vitro fertilization procedures in light of the fact that it mandated all accident and health insurance companies include in vitro fertilization as a covered expense in Ark.Code Ann. § 23-85-137(a) (Repl.2004) and was aware of assisted reproductive technologies by its reference to artificial insemination in Ark. Code Ann. § 28-9-209(c) (Repl.2004). She urges that based upon the medical definitions of "conception," the child born of the Finleys' union was not posthumously conceived and that as a matter of public policy, all children's rights should be protected, including their rights to property and inheritance.

The Commissioner responds that Arkansas intestacy law does not provide inheritance rights from a biological father to 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 the father. He argues that the Finleys' child was neither born nor conceived during the Finleys' marriage, which ended upon Mr. Finley's death. The Commissioner maintains that the logical interpretation of the term "conception" or "conceived," as used in Arkansas's intestacy provisions, is to mean the onset of pregnancy, or the successful implantation of an embryo in the womb. He asserts that the General Assembly has not amended the intestate succession statutes to expand the definition of conception to include the creation of embryos during the in vitro fertilization process and that absent a statutory amendment to encompass an IVF-created embryo, this court should conclude that the General Assembly did not intend for such embryos to be considered "conceived" within the terms of the intestacy statutes. He further points out that the General Assembly, and not the courts, determines public policy. Finally, the Commissioner submits, given the fact that inheritance laws require finality, it is unlikely that the legislature defined the term "conception" to include a medical procedure that could result in a biological birth many years after the father's death. Ms. Finley replies that the General Assembly has been well aware of assisted reproduction for a number of years and, had it chosen to do so, it could have enacted legislation to prevent such an inheritance.

A review of the benefits being sought and the orders leading to the certification of the instant question was set forth in the District Court's certification order. It provides that

[u]nder the Social Security Act, a child is entitled to child's insurance benefits if he is the child of an individual who dies while insured, if the child was dependent upon the insured at the time of the insured's death. See 42 U.S.C. § 402(d). "Child" means "the child or legally adopted child of an individual[.]" 42 U.S.C. § 416(c). In determining whether a claimant is the "child" of a deceased insured, the Commissioner is instructed to "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] was domiciled at the time of his death[.]" 42 U.S.C. § 416(h)(2)(A). Social Security regulations provide further guidance on determining "child" status, including that a claimant be the insured's "natural child," meaning that the claimant "could inherit the insured's personal property as his or her natural child under State inheritance law[s]." See 20 C.F.R. §§ 404.354 and 404.355(a)(1). In deciding whether the claimant has "inheritance rights as the natural child of the insured[,]" the Commissioner uses "the law on inheritance rights that the State courts would use to decide whether you could inherit a child's share of the insured's personal property if the insured were to die without leaving a will." See 20 C.F.R. § 404.355(b)(1).

During the administrative proceedings in this case, Plaintiff claimed that there were no Arkansas statutes specifically addressing the inheritance rights of a child conceived through in vitro fertilization, but that, pursuant to Ark.Code Ann. § 28-9-209(c), W.F. was "conceived" as a "zygote" prior to his father's death, while his parents were married. Thus, she argued that W.F. had inheritance rights under that statute. The Commissioner acknowledged the lack of a "clear definition" of "conception" under Arkansas state law, but looked to "the generally accepted definition of the term in the medical community" and concluded that "conception" occurred when "the embryo was implanted in [Plaintiff's] uterus after the wage earner died." The Commissioner also rejected Plaintiff's reliance on both Ark. Code Ann. § 11-9-507, a worker's compensation statute which does not "govern inheritance issues," and the Lonoke Circuit Court Order, which was "not consistent with the law as enunciated by the highest court in the State of Arkansas."

According to the Commissioner's findings: (1) W.F. was the biological child of Wade W. Finley, Jr. who was not married to Plaintiff at the time that W.F. was conceived or born; and (2) W.F. did not have "inheritance rights in [Wade W. Finley, Jr.'s] estate" and thus did "not have status as the child of the wage earner pursuant to [42 U.S.C § 416(h)(2)(A)]." Because Plaintiff's claim for "mother's insurance benefits" was contingent on having "an entitled child of the wage earner in her care," the Commissioner found that this claim also lacked merit.

(Internal footnotes and citations to transcript omitted.)

Having been presented with the instant question, we turn to our statutes on intestate succession. Title 28, Chapter 9 of the Arkansas Code Annotated sets forth Arkansas's law on intestate succession, entitled the "Arkansas...