After giving birth to her “miracle baby,” Katie Studdard thought her trials and tribulations were over. In the span of three years, she had undergone multiple uterine surgeries, suffered through an arduous in vitro fertilization process costing tens of thousands of dollars, and lost her husband to cancer.
“Having a child was a dream for both Chris (her husband) and me,” Studdard, who lives in Columbus, recounted. “After a very emotional fertility journey, our last remaining embryo was transferred, and finally, I was blessed with the most perfect baby girl.”
But she knew something was wrong when it took nearly six months for the Social Security office to get her daughter, Elyse, registered. When they finally contacted her, officials told Studdard the state did not recognize Elyse as the legal child of Studdard’s late husband, Chris McDill, because she was conceived via IVF shortly after McDill’s death.
That meant that Elyse, the biological child of McDill, would not receive survivor benefits from her father, and Studdard would not receive the “mother benefits” she would have had she been recognized as caring for a legal child of McDill.
For Studdard, it added insult to injury.
“I wiped out our complete life savings to have this baby,” Studdard said. “For them to come back and say ‘you know what, we’re not denying that he’s the biological father, but we’re not going to say he’s the legal father,’ because God forbid they give that child anything that she’s owed.”
Rep. Dana McLean, a Republican lawmaker representing Studdard’s district, authored a bill for the fifth year in a row to change inheritance law for children like Elyse. At least 27 states have enacted statutes to deal with cases where children are conceived after the death of one parent.
But for the last two years, McLean’s bills have been blocked by Sen. Brice Wiggins, R-Pascagoula. Wiggins, who chairs the Senate’s Judiciary A committee, chose not to bring the bill to a vote by the full Senate – despite his committee moving it forward – two years in a row. The bills died on the calendar as a result.
House Bill 1542, McLean’s most recent bill, passed the full House unanimously in mid-March and now sits in the Senate. It makes changes to intestate succession – how an estate is distributed in the absence of a will, or, in the case of Studdard, in a will made before the conception of a biological child.
Wiggins did not tell Mississippi Today what specific issues he has with the bill.
“On the surface, the bill has merit,” Wiggins said in a written statement. “That said, it’s a significant change to our inheritance laws … It’s the unintended consequences that create the push back and thus need to be addressed in order for it to pass.”
Wiggins declined to answer what unintended consequences he worries the bill will lead to or what he is doing to address them. He also did not respond to a question about what it would take for him to bring the bill to a floor vote if it passes his committee this year.
McLean’s bill would change inheritance law so that a child conceived via IVF within 36 months of one of the biological parents’ death would be considered an heir of the parent who died. That would include cases where a woman decided to continue implantation of an embryo after her husband’s death, as with Studdard, or cases where a man decided to continue with an embryo through surrogacy after his wife’s death.
To stay alive, the bill will need to pass committee by April 2, with an April 10 deadline for floor action. If it passes committee and Wiggins does not bring it up for a floor vote, this will be the third year he has done so.
Studdard’s case is an example of why the Legislature needs to be fluid, McLean said, to account for advances in technology, such as assisted reproduction, that couldn’t have been imagined at the time the law was written.
“I see it as an injustice to a child like Elyse who, through no fault of her own, was conceived after her dad’s death,” McLean said. “I think we need to make it right. I have found that on the books, we have a lot of statutes that have not kept up with the times. And to me, this is one of those that has not kept up with science or technology and we just need to go back and reevaluate.”
While Studdard’s circumstances are unique, they are not exceptional. Forty-two percent of Americans say that they have used fertility treatments or personally know someone who has. Still, in cases with children conceived via IVF after the death of one parent, many states still have outdated intestacy statutes that result in injustices to children like Elyse.
A paper by Sharon Klein, an estates and family law advisor, outlined the growing problem and the need for state legislatures to write specific laws with assisted reproduction technology in mind.
“State intestacy statutes drafted long before posthumous conception was even contemplated are by definition ambiguous because they were not designed to accommodate the situations with which they are now confronted,” the paper reads.
For some families, McLean explained, it could lead to inequalities such as one biological child inheriting everything – while another inherits nothing.
“I’ve explained it to some colleagues, that you and your wife – when I’m speaking to my male colleagues – conceived through IVF,” McLean said. “You have one child already and you have other embryos that you are considering using to conceive other children. Let’s say, unfortunately, you die. And your wife decides after a year or two, ‘you know, I really don’t want my child to be an only child, I want to have another sibling for this child.’”
But when the mother uses another embryo to conceive a child, that child “inherits nothing if it went through an intestate proceeding,” she explained. “So, same mother and father, same genetic material, same DNA, one child was born first and the second child was born after.”
Studdard said it’s been a five-year struggle with no transparency from lawmakers on the problems they say they have with the bill, or any headway they’ve made on addressing those problems – through hearings or debate.
“These concerns are coming from gentlemen who have no clue about the struggles of infertility – period,” Studdard said. “ … And so for me, someone who saw their husband dying for two and a half years, and then to find out the really sad news about having fertility issues a year prior to his death and trying to address those issues but just didn’t get pregnant quite in the time that they want me to get pregnant in, and then they go and throw this at me … It’s frustrating and really disheartening.”
And it isn’t just about the money – although the past few years have been a struggle for Studdard to make ends meet as a middle school art teacher without those monthly payments. It’s about McDill’s legacy and Elyse’s identity, she said.
“It’s dishonoring to his legacy,” Studdard reflected. “Elyse is such an amazing little girl, she’s smart, funny and strong-willed. Chris would be so proud of her. She deserves all the best that this world has to offer and deserves the state in which she lives to treat her with more respect than this. Every mother just wants the very best for their child and that’s all I’m asking now.”
Correction 3/25/24: This story has been updated to reflect the correct spelling of Studdard’s late husband’s last name.
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