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‘Dead Dads’ Bill Takes On Difficult Legal Question

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Times Staff Writer

After Bruce Vernoff died, his grieving widow -- with thoughts of a baby someday -- had sperm removed from his body and frozen. Four years later, Gaby Vernoff gave birth to a daughter with no father -- at least under the law.

To government officials in California, Bruce Vernoff never existed as a parent because he was dead long before his daughter was conceived.

For the record:

12:00 a.m. June 11, 2004 For The Record
Los Angeles Times Friday June 11, 2004 Home Edition Main News Part A Page 2 National Desk 1 inches; 62 words Type of Material: Correction
Frozen reproductive cells -- Articles May 17 in Section A and June 10 in the California section about in vitro fertilization said that although human sperm can be frozen and then used successfully, human eggs cannot yet be viable after freezing. Although the technique remains experimental, researchers in human fertility have reported successful pregnancies using frozen egg cells in a few cases.

Now some tricky legal issues highlighted by the Vernoff situation are being considered in the California Legislature.

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Can children produced by using frozen sperm or embryos -- after a parent has died -- claim an inheritance, life insurance or even Social Security benefits?

“There are 400,000 frozen embryos stored in this country, so it’s potentially a huge problem,” said Sharona Hoffman, an associate professor at Case Western Reserve University School of Law in Ohio and an expert in reproductive law.

To date, babies conceived after the death of a parent are extremely rare. But fertility experts suggest that the brave new world of reproductive technology will raise many new issues.

They point to the large amount of genetic material -- donated by men as disparate as cancer patients and U.S. soldiers heading off to battle -- now being deposited in cryogenic storage banks for future use. Eventually, those stockpiles will include donations from women, as scientists expect that they will develop ways to freeze and store human eggs.

Healthy sperm can be extracted within a day after a man’s death, frozen for years and then be used to conceive a child.

Could a mother, then, produce an heir to a large estate well after the death of the father? Could other heirs stop their own potential sibling from being conceived because it would threaten their inheritance? Would the answer be different if the sperm were taken from the father without his having given permission before his death?

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Consider the case of Gaby Vernoff, pending in a Los Angeles federal court. Her baby was conceived from sperm extracted 30 hours after Bruce’s accidental death in 1995.

The mother is seeking Social Security survivor benefits for her daughter -- the same monthly benefit most other children receive after losing a parent.

But to the federal government, the daughter is not eligible for Social Security benefits because Bruce is not recognized as the father under California law.

“The father had benefits because he contributed money to the system,” said Pasadena lawyer Wally Vernoff, Bruce’s father and the attorney on the case. “Either that money is used to benefit the child or the widow, or it goes to the United States, and that doesn’t seem to be a case of justice.”

The Social Security Administration, although a federal agency, looks to each state for legal guidance in resolving issues of family status. Since California has no laws governing children conceived after the death of a parent, the offspring would be denied survivor benefits, said Lowell Kepke, a spokesman for Social Security’s regional office in San Francisco.

That could soon change, however. A measure now moving through the Legislature, AB 1910, dubbed the “dead dads” bill by its author, Assemblyman Tom Harman (R-Huntington Beach), would grant inheritance rights to children who are conceived within one year after a parent has died. It would make California one of a handful of states to have legislated on the issue.

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The legislation offers legal recognition of parents whose sperm or eggs are used with their permission to conceive a child. Anonymous sperm donors would remain anonymous, but fathers and mothers who put in writing their desire to be parents after death -- and who designate a surviving parent -- would be covered.

The bill might not resolve the Vernoff case because Bruce Vernoff had not made any written indication of his wishes before he died.

In other states, the details vary, but Colorado, Delaware, Florida, Massachusetts, Texas, Virginia and Washington prohibit deceased sperm and egg donors from being recognized as parents, unless the donor consented in writing before his or her death.

Harman, a lawyer who has specialized in estate and probate law, said he became fascinated with the subject after reading a law review article on posthumous reproduction. He expects a favorable vote on the measure Thursday in the Assembly. It already has unanimously passed the Assembly Judiciary Committee.

His bill is narrowly focused on the issue of estate law and children who are conceived through biomedical science. Human clones would flatly be denied any inheritance rights under the legislation.

And while the legislation would not prohibit women from conceiving children from frozen sperm or embryos many years into the future, those offspring would be denied certain rights if conceived after a year from the father’s death.

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Insurance companies and estate lawyers wanted guarantees in the bill that a child would not be conceived years down the road and interfere with a possible inheritance. They want to be able to pay heirs quickly.

The Harman bill could delay a payout from an estate for up to a year and nine months. “We don’t want estates to be held in limbo year after year after year,” said Harman.

Although the legislation makes it clear that inheritance benefits would be prohibited when conception occurred after one year, Harman is working on amendments that would clarify whether Social Security benefits could be extended beyond that window, his aides said.

A decision has not been made.

California has been struggling with the issue of posthumous conception since the 1991 suicide of Bill Kane, a brilliant but troubled Los Angeles businessman.

In anticipation of his suicide, Kane deposited 12 vials of his semen for use by his lover, Deborah Hecht, after his death. Kane’s adult children, livid at their father’s secret plans, challenged Hecht’s right to receive the semen.

After six years of legal wrangling that finally was ended by the California Supreme Court, Hecht received the semen vials -- but it was too late for her to conceive.

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“Knowing that you might be dying and still want to procreate, it makes sense that society would acknowledge there should be rules,” said attorney Marvin Rudnick. “There are consequences.”

Timing is a key factor for some involved in the emotional issue.

Louisiana has a three-year window in part because of the efforts of a woman named Nancy Hart, who fought to procure Social Security benefits for her daughter, now 12.

Hart’s daughter was conceived after the death of her father, Edward Hart, who had deposited sperm in a New Orleans fertility clinic because chemotherapy to treat his cancer threatened to make him sterile.

He died in 1990, and Nancy Hart quickly went to the sperm bank to get inseminated.

“If I had to do it over again, I would not have gone through what I went through while I was still grieving,” Hart said. “I still haven’t totally dealt with it, and it’s still 14 years later.”

California Cryobank co-founder Dr. Cappy Rothman, who in 1978 became the first physician to extract sperm from a dead man, said new widows often need time to make decisions.

“There is just so much depression and recovery after death that they may need more time,” Rothman said.

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“We recommend that anyone who loses a family member wait at least six months,” said Rothman, who handled the Vernoff case, “to make sure the reason they are doing it is for the right reason.”

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