Benefits in limbo for in-vitro child of deceased dad

She has her father's cheekbones, his high energy, his height and his affable nature. But for 6-year-old Sayana Chappell- Lombard, daddy died several years ago and is in heaven.

Sometimes, says her mother, Victoria Chappell, a Renton schoolteacher, Sayana goes to the back yard, looks up at the sky and shouts:

In 1993, Chappell was engaged to Sayana's father, former UW Husky linebacker Arlando Lombard, who was dying of brain cancer.

Before he began chemotherapy, which can leave a patient sterile, he had some of his sperm frozen.

Lombard died in 1994. A year and a half later, an embryo was created in vitro, using his sperm and one of Chappell's eggs, and planted in Chappell's uterus.

For the past five years, Chappell, a single parent living on a teacher's salary, has fought the Social Security Administration to get survivor benefits for their daughter.

The Social Security Administration says the case has yet to be decided at SSA's Baltimore headquarters, but the agency cautions that because Sayana's parents were never married, government attorneys have no law or precedents to guide them. That issue makes the case unique, the first in Washington and possibly the nation.

Laws pertaining to children of deceased parents have changed little since survivor benefits for children were first paid in 1940, and surely haven't kept pace with how technology has redefined reproduction.

Across the nation, a small but growing number of cases similar to Chappell's are challenging state and federal regulations to get benefits for children.

"Most of these cases end up in court," said Tim Kelley of SSA's legislative-affairs office in Maryland. "In general, we look to state law to determine the child's rights."

State laws determine a child's inheritance status and the child's standing in similar family matters.

In Massachusetts, the SSA argued that twin girls conceived after their father died of leukemia were not entitled to his SSA benefits, following the state's lead that the father was simply the sperm donor and not the legal father.

In January, the Massachusetts Supreme Judicial Court became the first high court in the country to rule that children who are conceived with the frozen eggs or sperm of a deceased parent can become legal heirs, a decision that opened the way for the children of married couples to receive benefits.

In 1999, a Louisiana woman sued SSA after her daughter was denied survivors' benefits because the child was conceived after her father's death. SSA settled with the woman out of court.

Chappell's case brings new legal challenges because she and Lombard never married.

The two knew each other much of their early years growing up. Lombard, a graduate of Seattle's Chief Sealth High School, played football for the University of Washington in the early '80s, until a car accident in 1985 paralyzed him from the waist down.

When Chappell met him again at a Husky football game in the early '90s, she was impressed by his optimism despite his disability. They became close friends. Then he was diagnosed with brain cancer.

"We talked about getting married, but nothing was as important as his getting well,'' she said.

Then during a telephone conversation one night, Lombard asked her if she would like to have a child. She said she would, and he then had his sperm frozen before chemotherapy. When Lombard died Jan. 27, 1994, at age 32, the sperm was willed to his sister, who handled his estate. The sister gave the sperm to Chappell and an embryo resulting from the fertilization of one of her eggs was planted in her womb. Sayana was born nine months later.

"What it does for us and the family is that it keeps his legacy going," said Vincent Lombard, Arlando's father, who lives in Seattle. "It certainly keeps us thinking about him and the good things he did."

Under Washington law, Sayana acquired one-third of her father's estate, which is held in trust for her.

The vagueness in Washington law makes it difficult to determine what Sayana's Social Security rights are, say lawyers familiar with such cases.

Laws governing children vary from state to state, which makes deciding them difficult for the federal government.

"These cases are going to increase in time and it would be helpful if there were uniform laws so people know upfront what they are facing," said Laurie Rosenow, senior fellow at the Institute for Science, Law and Technology in Chicago.

In most cases, states require the donor parent to have given some form of explicit consent that their sperm or eggs can be used to produce children, Rosenow said.

Until recently, Washington state law did not address the issue of children conceived posthumously. On June 13, however, the state Uniform Parentage Act goes into effect. It includes laws that will guide posthumous conception cases, at least for married couples.

The law requires a deceased spouse to have given consent for reproduction. Without it, any child born from donor eggs or sperm would not have legal rights to inherit the deceased person's Social Security benefits.

Seattle attorney Rita Bender says the new laws would seem to cover the situation "in which a married couple had an after-born child."

But it still doesn't address what to do when the couple is not married. That in itself puts it in conflict with other state laws that treat the children of unmarried couples the same as if the couple were married, Bender said.

"This is really 'Brave New World' stuff. It's complex because the technology has gotten ahead of the law. The statute is an attempt to start dealing with it,'' she added.

Meanwhile, Chappell and her daughter wait for Social Security officials to make a decision.

Sayana, whose extended family calls her the miracle baby, is like many other youngsters her age — looking forward to the first visit from the tooth fairy and savoring the happiness from a recent birthday party. But someday, Chappell said, she will sit her daughter down and explain that while technology helped her come into this world, she was a most wanted child and conceived in love.

We're so vain, we probably think this song is about us.

Little girls are thrown away in China, while thousands of dollars are spent on posthumous conception techniques.

Man offers dead wife's embryos for adoption

Lois Rogers, Medical Correspondent The Sunday Times, London

AN anguished widower has resolved to give away the frozen embryos of his unborn children to save them from destruction.

He fertilised eggs taken from his wife before she died nearly five years ago. The embryos have been stored since then but under government regulations will be destroyed if they have not been used by next January.

The man, in his early forties, lives in the Home Counties. He is driven, say friends, by a desperate urge to save the last vestiges of his wife's life, but he has barely four months left.

His wife, who was 37, was awaiting a heart-lung transplant when she underwent treatment at Lord Winston's fertility clinic at Hammersmith hospital, west London, in 1995. Eggs were extracted and fertilised in vitro with her husband's sperm.

More than eight resulting embryos were frozen. She died shortly after the transplant, having requested that their offspring should not be wasted.

Since then, according to friends, the widower has agonised over how he can keep the memory of his wife alive through the birth of their children. The man, whom doctors describe as "bruised" by his experiences, has not remarried.

He initially sought a surrogate so he could bring up the children himself. Having not found a suitable one, he has resolved to put the embryos up for adoption by childless couples on waiting lists for treatment. Even his close family is unaware that the embryos exist.

Unlike Diane Blood, 34, who went to Belgium to be artificially inseminated because she lacked her dead husband's written consent to use his sperm, the widower has his wife's permission for the embryos to be used in a surrogate.

There are other complications, however. Guidelines from the Human Fertilisation and Embryology Authority (HFEA) require women donors to be under 35. They also require an HIV test on the mother no less than six months after embryos are created. The wife died before that was possible.

While the Hammersmith clinic has been happy to retain the embryos in store, it was not willing to use them in another woman, apparently because of the risk of jeopardising its licence.

The Bridge Fertility Centre at the London Bridge hospital might be prepared to take up the widower's case. It has found an HIV-negative blood sample taken from the woman before she died and has offered to negotiate with the HFEA.

The indications are that treatment will go ahead, paving the way for other bereaved men to create posthumous babies from their dead wives. "We are not trying to be difficult," an HFEA spokesman said. "We have to apply the guidelines, but we will look at it if the [Bridge] clinic applies to the licensing committee for an opinion."

Gedis Grudzinskas, director of the Bridge clinic, acknowledged that doctors would have to be careful about which patients were offered posthumous treatment, but added: "This man wants his own and his dead wife's wishes to be carried out. He is under pressure because the expiry date is coming up. He is running out of time, but we have plenty of couples wanting to adopt embryos and I believe we can help him."

Richard Nicholson, editor of the Bulletin of Medical Ethics, raised concerns about the children conceived in this way: "If you discover your mother died three or four years before you were born, I feel it would be harder to deal with than finding out you were the product of a donated embryo. I do not find this idea of posthumous conception very appealing."

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