The Michigan Supreme Court heard oral arguments mid-Month in a very interesting case of first impression involving frozen sperm and Michigan's laws of intestacy.  The certified question before our High Court  is whether frozen sperm equates to "children" under the intestacy statute.

In this case, the procedure is as unusual as the fact pattern.  The case comes to the Supreme Court on a certified question from the United States District Court for the Western District of Michigan.  The case took more than five-years to get to the state court.

The case arose when the Mattisons, a married couple, arranged for Mr. Mattison to bank his frozen sperm in order to preserve it for later impregnation and prior to receiving chemotherapy to treat his cancer.  The couple desired to preserve their ability to have children but were worried that Mr. Mattison's chemotherapy would damage his sperm, complicating their efforts to conceive a child.

After actively preparing his wife to receive his frozen sperm, Mr. Mattison died back in 2001.  Ms. Mattison subsequently was implanted with her deceased husband's frozen sperm, conceived and gave birth to twins.

Ms. Mattison's application on behalf of the twins for survivor benefits was denied by the Social Security Administration.  The SSA took the position that the children did not survive their wage-earner father under the definition of the terms "child" and "survive" in Michigan's probate code; the Estates and Protected Individuals Code.

In listening to oral arguments in the case, it did not appear that the High Court Justices, particularly Justices Robert Young and Stephen Markman, were very receptive to Ms. Mattison's position.  Justice Young exhibited palpable irritation that the certified question, which appears to have no statutory support in EPIC, took so long to make it's way to the Michigan Supreme Court.

Although many other states are considering similar questions, we here at the Law Blogger predict that our Supreme Court will decide in this case that the Mattison twins are not entitled to receive the survivor benefits from their deceased wage-earning father on the basis that they simply did not exist at the time of their father's death.

Toward the end of the very brief oral arguments, one of the Justices asked Ms. Mattison's attorney whether he had considered raising the frozen sperm survivorship issue with the Michigan Legislature.  We agree with Justice Young when, during oral argument, he wondered aloud whether the certification of this particular question was essentially a violation of the constitutional separation of  powers.

Unfortunately for the Mattisons, Courts cannot legislate from the bench.

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