November 11, 2008

Arkansas: Frozen embryos and Workers Comp

Here are two items you might never expect to appear together: frozen embryos and workers comp. But a case in Arkansas reveals that the comp system can easily be drawn into the ongoing (and apparently endless) debate of when life begins.

Wade and Amy Finley were married in 1990. They were unsuccessful in having children, so in 2000 they initiated infertility treatments. They froze several embroyos as part of this effort.

In July of 2001, Wade was killed in a job related accident. In accordance with Arkansas's comp statute, Amy received survivor benefits. In June of 2002, nearly a year after Wade's death, Amy had the previously frozen embryos emplanted in her womb. Wade Jr was born in March of 2003. Amy immediately filed for comp dependency benefits on behalf of her newborn son.

Her claim was initially declined, then allowed, and then brought before the Arkansas Supreme Court. The court defined the problem as follows: 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 rights under Arkansas comp law?

Suspended Animation?
Amy asserted that the child was Wade's and as such was entitled to dependency benefits. The workers comp commissioner argued that Wade Jr was neither born nor conceived during the Finley's marriage, which ended upon Mr. Finley’s death.

It is clear from the statute that in order to inherit through intestate succession as a posthumous descendant, the child must have been conceived before the decedent’s death. However, the court points out that the statutory scheme fails to define the term “conceived.” Was the merger of cells in a petri dish - followed almost immediately by freezing - a conception? Was that microscopic event the beginning of life?

Ultimately, the court did not buy Amy's argument. The justices state that their role "is not to create the law, but to interpret the law and to give effect to the legislature’s intent." Arkansas statutes do not specifically define the petri dish merger as a "conception." Wade Jr is the child of his father (whom he sadly will never know) and the dependent of his mother. But he is not a dependent as defined for workers comp purposes and as such does not qualify for benefits.

Amy was certainly within her rights to have Wade's child after his death. The state is apparently within its rights to preclude dependency benefits for the child. The court punted on the issue of when life begins, leaving that sticky question for the state legislature. I recommend against their trying to resolve it once and for all.

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This page contains a single entry by Jon Coppelman published on November 11, 2008 12:22 PM.

Insurance in the storm: buyers can expect the onset of a hard market was the previous entry in this blog.

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