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No survivor's benefits for posthumously conceived

Associated Press Modified: November 16, 2012 at 1:31 pm •  Published: November 16, 2012

OMAHA, Neb. (AP) — The Nebraska Supreme Court ruled Friday that children in the state conceived through artificial insemination after the death of a parent cannot receive Social Security survivor benefits.

The court's decision Friday came 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.

In the Amen case, the federal court in Nebraska 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. Court records say that in 2005, 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 within days of her husband's death 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 Social Security Administration reversed the judge's finding, and Melissa Amen sued.

Her attorneys argued that Nebraska's laws don't specifically address the inheritance rights of children posthumously conceived, but that they do allow for posthumously born children to inherit, as long as paternity is established.

Amen's lawsuit also argued that even if Nebraska's law is found to apply only to those children conceived during the father's lifetime, 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. To deny the child benefits, the lawsuit said, would violate the equal protection clause of the Nebraska Constitution.

Attorneys for the Social Security Administration countered that Nebraska law states plainly that only a child conceived before a father's death but born after can inherit.

The Nebraska Supreme Court on Friday agreed, saying that a child conceived after a biological father's death does not "survive" the parent, and therefore is excluded from inheriting from the father's estate under Nebraska law.

"Further, such a child is unambiguously excluded from inheriting under (state law) because she was not conceived prior to her father's death," Judge Michael McCormack wrote for the state's high court. "Our answer is consistent with at least four other courts that have interpreted the same, or similar, afterborn heirs statutes to exclude posthumously conceived children."

The state Supreme Court refused to address the merits of Amen's constitutional challenge, saying it was not asked by the federal court to address that issue and, therefore, did not have jurisdiction to take up that challenge.

Amen's attorney, Maureen McBrien of Boston, said Friday she respects the ruling, even if she disagrees with it.

"I think it's unfortunate for my client," she said.

The case is still pending in U.S. District Court, and the question of the law's constitutionality is still before the federal court, McBrien said.

The federal attorney, Karen Seifert with the U.S. Department of Justice, did not immediately return a message left Friday seeking comment on the decision.


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