Law of Wills, 2016A

The question whether posthumously conceived genetic children may enjoy inheritance rights under
the intestacy statute implicates three powerful State interests: the best interests of children, the
State's interest in the orderly administration of estates, and the reproductive rights of the genetic
parent. Our task is to balance and harmonize these interests to effect the Legislature's over-all
purposes.
1. First and foremost we consider the overriding legislative concern to promote the best interests of
children. “The protection of minor children, most especially those who may be stigmatized by their
‘illegitimate’ status ... has been a hallmark of legislative action and of the jurisprudence of this
court.” L.W.K. v. E.R.C., 432 Mass. 438, 447-448, 735 N.E.2d 359 (2000). Repeatedly, forcefully,
and unequivocally, the Legislature has expressed its will that all children be “entitled to the same
rights and protections of the law” regardless of the accidents of their birth. G.L. c. 209C, § 1. See
G.L. c. 119, § 1 (“It is hereby declared to be the policy of the commonwealth to direct its efforts,
first, to the strengthening and encouragement of family life for the protection and care of children
...”). Among the many rights and protections vouchsafed to all children are rights to financial
support from their parents and their parents' estates. See G.L. c. 119A, § 1 (“It is the public policy of
this commonwealth that dependent children shall be maintained, as completely as possible, from the
resources of their parents, thereby relieving or avoiding, at least in part, the burden borne by the
citizens of the commonwealth”); G.L. c. 191, § 20 (establishing inheritance rights for pretermitted
children); G.L. c. 196, §§ 1-3 (permitting allowances from estate to widows and minor children);
G.L. c. 209C, § 14 (permitting paternity claims to be commenced prior to birth). See also G.L. c. 190,
§§ 1-3, 5, 7-8 (intestacy rights). 54
We also consider that some of the assistive reproductive technologies that make posthumous
reproduction possible have been widely known and practiced for several decades. See generally Banks,
Traditional Concepts and Nontraditional Conceptions: Social Security Survivor's Benefits for Posthumously Conceived
Children, 32 Loy. L.A. L.Rev. 251, 267-273 (1999). In that time, the Legislature has not acted to
narrow the broad statutory class of posthumous children to restrict posthumously conceived
children from taking in intestacy. Moreover, the Legislature has in great measure affirmatively
supported the assistive reproductive technologies that are the only means by which these children
can come into being. See G.L. c. 46, § 4B (artificial insemination of married woman). See also G.L. c.
175, § 47H; G.L. c. 176A, § 8K; G.L. c. 176B, § 4J; G.L. c. 176G, § 4 (insurance coverage for
infertility treatments). We do not impute to the Legislature the inherently irrational conclusion that
assistive reproductive technologies are to be encouraged while a class of children who are the fruit
of that technology are to have fewer rights and protections than other children.
In short, we cannot, absent express legislative directive, accept the commissioner's position that the
historical context of G.L. c. 190, § 8, dictates as a matter of law that all posthumously conceived
children are automatically barred from taking under their deceased donor parent's intestate estate.
We have consistently construed statutes to effectuate the Legislature's overriding purpose to
promote the welfare of all children, notwithstanding restrictive common-law rules to the contrary.
54 The provisions of the intestacy statute regarding paternity have been regularly amended to broaden the class of
nonmarital children eligible to succeed from their father's intestate estate. See Houghton v. Dickinson, 196 Mass. 389, 390-
391, 82 N.E. 481 (1907). See also St.1943, c. 72, § 1 (establishing succession rights for nonmarital child whose father's
paternity has been successfully adjudicated); St.1980, c. 396 (establishing succession rights for nonmarital child whose
father has acknowledged paternity).
246