2006-751, CHRISTINE C. ENG KHABBAZ v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

Pursuant to Supreme Court Rule 34, the United States

Law, on the brief), for the defendant. Nancy B. Salafia, attorneys, Office of General Counsel and Office of Program on the brief), United States Social Security Administration (Karen J. Aviles and United States Attorney (David L. Broderick, Assistant United States Attorney, D. Keisler, assistant attorney general, on the brief, Thomas P. Colantuono, Patterson and Richard G. Lepley on the brief, and Mr. Patterson orally), Peter United States Department of Justice, of Washington, D.C., (Nicholas J.

R. Schick on the brief, and Mr. Kerrigan orally), for the plaintiff. Hamblett & Kerrigan, P.A., of Nashua (Timothy G. Kerrigan and Jennifer to press. Errors may be reported by E-mail at the following address:

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

HER MOTHER AND NEXT FRIEND, DONNA M. ENG CHRISTINE C. ENG KHABBAZ, BY AND THROUGH

editorial errors in order that corrections may be made before the opinion goes No. 2006-751 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any U.S. District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as entitled to child’s insurance benefits.

p. 2 “child” of Mr. Khabbaz under the Act and is therefore Hampshire intestacy law, she is considered to be the Mr. Khabbaz as his surviving issue under New be deemed such. Thus, if Christine may inherit from

intestate personal property as a child of parent shall

such law would have the same status relative to taking at the time of his death. Applicants who according to State in which such insured individual was domiciled

of intestate personal property by the courts of the law as would be applied in determining the devolution

explained:

(Quotation, citation, brackets and ellipses omitted.)

Act instructs the Commissioner [to] . . . apply such U.S.C. § 402(d)(1). In determining “child” status, the death is entitled to child’s insurance benefits. 42

May 23, 1998. and is dependent on the insured at the time of his father of the child to the fullest extent allowable by law.” Mr. Khabbaz died on pregnancy” and that it was his “desire and intent to be legally recognized as the

inherit from her father under state intestacy law. As the federal district court Under federal law, her eligibility for the benefits depends upon whether she can 2000. At some point thereafter, she sought social security survivor’s benefits.

individual who is the “child” of an insured wage earner [U]nder the Social Security Act (the “Act”), an form indicating that the sperm could be used by his wife “to achieve a

conceive a child through artificial insemination. He also executed a consent illness. Subsequently, he began to bank his sperm so that his wife could had a son together. In April 1997, Mr. Khabbaz was diagnosed with a terminal

Mr. Khabbaz’s death, using his banked sperm, and was born in the summer of Christine C. Eng Khabbaz was conceived by artificial insemination after

intestacy law? father as his surviving issue under New Hampshire

Rumzi Brian Khabbaz were married in September 1989 and, six years later, The district court’s order provides the following facts. Donna M. Eng and

We respond in the negative.

artificial insemination eligible to inherit from her Is a child conceived after her father’s death via p. 3 3

sisters take equally if they are all of the same degree of surviving brother or sister, the issue of brothers and brother or sister by representation; if there is no brothers and sisters and the issue of each deceased

Hampshire law, the district court certified the question to us. district court. Recognizing that this case raises an unresolved question of New (c) If there are no surviving issue or parent, to the

decedent’s parent or parents equally. (b) If there are no surviving issue, to the

take by representation. of unequal degree, then those of more remote degree all of the same degree of kinship to the decedent, but if (a) To the issue of the decedent equally if they are

as follows:

legislature did not see fit to include. intestate estate if there is no surviving spouse, passes affirmed. Christine then appealed the commissioner’s decision to the federal consider what the legislature might have said or add language that the surviving spouse under paragraph I, or the entire

The part of the intestate estate not passing to the

estate not passing to the surviving spouse. It provides: turn, describes the procedure for distributing that portion of the intestate under which a surviving spouse may take from the estate. RSA 561:1, II, in personal estate upon intestacy. RSA 561:1, I, prescribes the circumstances distribution. RSA 561:1, in particular, governs the devolution of the real and RSA chapter 561 (2007) sets forth a comprehensive scheme for estate

the Appeals Council of the Social Security Administration subsequently at p. 3 372. We interpret legislative intent from the statute as written and will not hearing, an administrative law judge upheld the commissioner’s decision, and ascribe the plain and ordinary meaning to the words used. Id. at ___, 921 A.2d interpretation of RSA 561:1, our state’s intestacy distribution statute. After a 921 A.2d 369, 372 (2007). When examining the language of the statute, we considered as a whole. Chase v. Ameriquest Mortgage Co., 155 N.H. ___, ___, arbiters of the legislature’s intent as expressed in the words of the statute intestacy statutes. In matters of statutory interpretation, we are the final Responding to the certified question requires us to interpret our state

denied Christine’s application for survivor’s benefits based upon an The Commissioner of the Social Security Administration (commissioner) representation.

p. 4 of unequal degree those of more remote degree take by all of the same degree of kinship to the decedent, but if decedent and said issue shall take equally if they are

are not beyond the fourth degree of kinship to the

entire estate passes to the issue on the other side who

decedent on either the paternal or maternal side, the grandparent within the fourth degree of kinship to the however, that if there are no issue of the decedent’s remote degree take by representation; provided,

the decedent, but if p. 4 of unequal degree those of more equally if they are all of the same degree of kinship to fourth degree of kinship and said issue shall take

of the maternal grandparent who are not beyond the Hampshire.

of kinship to the decedent.

receive the entire estate. only one grandparent survives, such grandparent shall representation, and the other half passes to the issue the maternal grandparents in the same manner; or if p. 4 of unequal degree those of more remote degree take by section, the intestate estate passes to the state of New all of the same degree of kinship to the decedent, but if (g) If there is no taker under the provisions of this

pass to any person who is of the fifth or greater degree (f) No portion of a decedent’s intestate estate shall

grandparent is deceased and the other half passes to surviving paternal grandparent if one paternal decedent and said issue shall take equally if they are paternal grandparents if both survive or to the more grandparents, one half of the estate passes to the

who are not beyond the fourth degree of kinship to the estate passes to the issue of the paternal grandparent of a parent but the decedent is survived by one or decedent’s grandparent who survive, one half of the a parent, or grandparent but there are issue of the (e) If there are no surviving issue, parent, issue of

(d) If there are no surviving issue, parent or issue

those of more remote degree take by representation. kinship to the decedent, but if of unequal degree then posthumously several years after an individual’s death, and waiting for the

decedent’s property is distributed. of the word “surviving” in part (a) makes no difference in determining how the clearly contemplated. After all, on a practical level, children may be conceived not – would undermine the finality and orderly distribution that the legislature RSA 21:20 broadens RSA p. 5 561:1, II(a) to include all issue – whether surviving or legislature or repugnant to the context of the same statute.” To conclude that

parts (b) through (e) and viewed within its larger statutory context, the absence

such construction would be inconsistent with the manifest intent of the definitions in RSA chapter 21 shall be observed in construing statutes “unless distribution process clearly contemplated by the legislature. definition of “issue” found at RSA 21:20. RSA 21:1 provides, however, that the not require the decedent’s issue to “survive” would undermine the orderly Supp. 2006) sets forth general rules of statutory construction, including the and orderly fashion contingent upon who is alive. To hold that part (a) does RSA 21:20 does not compel a contrary result. RSA chapter 21 (2000 & who remain alive at the time of the decedent’s death – may inherit in a timely

purpose of the statutes). Accordingly, when part (a) is interpreted in light of and so that they will lead to reasonable results and effectuate the legislative in harmony with the overall statutory scheme. subject matter, we construe them so that they do not contradict each other, A.2d at 373 (when interpreting two or more statutes that deal with a similar

statutory scheme under which those who “survive” a decedent – that is, those a whole, RSA p. 5 561:1, II evinces a clear legislative intent to create an overall “surviving issue” in describing the order of distribution. Thus, when viewed as of the statute. A.2d at 373. Parts (b) through (e) of RSA 561:1, II all expressly reference posthumously conceived child is a “surviving issue” within the plain meaning Chase, 155 N.H. at ___, 921 a year after his death. It follows, therefore, that neither she nor any However, we do not construe statutes in isolation; instead, we attempt to do so existence” at the time of his death. She was not. She was conceived more than In isolation, the provisions cited by Eng might support her position.

“issue” as “includ[ing] all the lawful lineal descendants of the ancestor.” “remaining alive or in existence.” argues that her position is buttressed by RSA 21:20 (2000), which defines applies to any “issue” – including posthumously conceived children. She issue,” RSA p. 5 561:1, II(a) does not include the word “surviving,” and therefore it Alternatively, Eng contends that even if her daughter is not a “surviving

father passed away, Eng would necessarily have to have been “alive” or “in 2303 (unabridged ed. 2002). In order to remain alive or in existence after her

of the statute. However, the plain meaning of the word “surviving” is Eng argues that her daughter is a “surviving issue” within the meaning p. 6 (e) The decedent had adopted the child.

father by clear and convincing evidence.

(d) Paternity is established after the death of the

father before his death.

(c) A court decree adjudges the decedent to be the

the father. (b) Acknowledgment of paternity or legitimation by

the child.

(a) Intermarriage of the parents after the birth of

under any of the following conditions:

or through his father as if born in lawful wedlock,

we do not apply it. RSA 21:1.

II. A child born of unwed parents shall inherit from 6

so dying were born in lawful wedlock.

manifest intent of the legislature and repugnant to the context of RSA 561:1, II,

dead, through the line of the mother as if the person

RSA 561:4.

of the definition of “issue” in RSA 21:20 would be inconsistent with the “issue” entitled to inherit under the statute. Accordingly, because application be made if using a male’s banked sperm any time after his death could create

shall descend to the mother, and, if the mother is intestate and leaving no issue, nor husband, nor wife The estate of a person born of unwed parents dying

determination of the existence of “surviving issue,” a determination that cannot It provides: RSA 561:4 describes the inheritance rights of children born to unwed parents.

or through his mother as if born in lawful wedlock. I. A child born of unwed parents shall inherit from

RSA 561:1, II(b) – II(e) because application of those parts is dependent upon a conceived child would render meaningless the contingency scheme created by operates, requiring estates to wait for the potential birth of a posthumously renders her daughter eligible to inherit under New Hampshire intestacy law. We also reject Eng’s further argument that another statute, RSA 561:4,

distributions indefinitely. Moreover, in terms of how the statutory scheme potential birth of a posthumously conceived child could tie up estate p. 7 7

moment of the child’s birth unless the surrogate gives

such will otherwise provides.

(a) The child of the intended parents from the

surrogate is: II. For purposes of paragraph I, a child born of a

estate. allowance during the administration of a parent's child.” (d) Being entitled to any support or similar

(c) Taking under the will of any person, unless RSA 168-B:9, entitled “Intestate and Testate Succession,” provides:

renders her daughter eligible to inherit from Mr. Khabbaz if he died intestate. (b) Taking against the will of any person. artificial insemination, in vitro fertilization, preembryo transfer and surrogacy,

(a) Intestate succession.

children. under RSA 168-B:2-5, for purposes of:

the parent or parents of the child, as determined parents, and the parent or parents shall be considered

illegitimate. To the contrary, she refers to herself as her father’s “legitimate shall be considered a child only of his or her parent or are not “unwed” for purposes of the statute, and she does not argue that she is I. Subject to the provisions of paragraph II, a child must be true in the instant case. Although Christine’s father died, her parents “unwed” and no one would question the legitimacy of the child. The same

Eng also argues that RSA chapter 168-B (2002), a framework governing

561:4. establish a scheme of inheritance rights, upon intestacy, for illegitimate deemed legitimate). Accordingly, we reject Eng’s contentions based upon RSA disagree. Viewed as a whole, RSA 561:4 evinces a clear legislative intent to See RSA 168-B: p. 7 7 (2002) (child created through artificial insemination is as she satisfied any of the conditions listed in RSA 561:4, II (a) – (e). We

would no longer be married; however, he and his wife would not be deemed a father died during the last few months of his wife’s pregnancy, the parents from both the mother and the father.”). If a man who was both a husband and illegitimate child whose mother and father dies intestate, to be able to inherit

See N.H.S. Jour. 899 (1983) (“This [bill] would provide for an

Christine born to unwed parents and eligible to inherit from her father as long Eng contends that Mr. Khabbaz’s death ended the marriage, leaving result. To reach the opposite result and adopt the reasoning of p. 8 conceived] children unprotected.” However, the present statute requires that

parent’s death to inherit, we agree with the special concurrence that “the children who are posthumously conceived within a reasonable time after a § 160.707 (Vernon 2002); VA. CODE ANN. § 20-158(B) (LexisNexis 2004). As the Eng argues that public policy requires us to read RSA 561:1, II as allowing N.D. CENT. CODE §§ 14-18-04(2), 14-18-07 (2004); TEX. FAM. CODE ANN. FLA. STAT. § 742.17(4) (2006); LA. ANN. STAT. § 9:391.1(A) (LexisNexis 2004); these issues, and we leave it to ours, if it chooses, to do the same. See, e.g., Kidder, 150 N.H. 600, 604 (2004). Other state legislatures have grappled with 373. We reserve such matters of public policy for the legislature. State v. would require us to add words to a statute, Chase, 155 N.H. at ___, 921 A.2d at

Massachusetts statutes that differ from our own. Furthermore, to the extent 2002). Woodward, however, is distinguishable because it is based upon Court in Woodward v. Commissioner of Social Security to keep the child pursuant to RSA 168-B:25, IV., 760 N.E.2d 257 (Mass. that we should adopt the reasoning of the Massachusetts Supreme Judicial child’s birth, if the surrogate gives notice of her intent they will lead to reasonable results and effectuate the legislative purpose. Finally, based essentially upon public policy considerations, Eng argues under RSA 168-B:3, I(d), from the moment of the similar subject matter so that they do not contradict each other, and so that would be inconsistent with our practice of construing statutes that deal with a above, we reject this argument. hundred and twenty hours.” In light of our discussion of “surviving issue” survivorship is based, only that they survive the decedent more than one utero at the time of the death of the individual upon whose death the under the USDA that the surviving individual be in existence, in gestation or in chapter 563 (2007), supports her position because “[t]here is no requirement Eng also argues that the Uniform Simultaneous Death Act (USDA), RSA

Chase, 155 N.H. at ___, 921 A.2d at 373.

any, or if none, the person presumed to be the father

168-B:9 creates a distribution scheme different from that created by RSA 561:1 who inherit upon intestacy must be “surviving.” Moreover, to hold that RSA affirmatively or implicitly modifies the requirement of RSA 561:1 that the issue means. However, nothing in the plain language of RSA 168-B:9 either These provisions establish certain rights for children born by alternative

(b) The child of the surrogate and her husband, if

168-B:25, IV. notice of her intent to keep the child pursuant to RSA such advances.

p. 9 inconsistent with the manifest intent of the legislature or repugnant to the

and more of our state’s families and the children produced as a consequence of with time and further technological advances, this confluence will engulf more presumptions attendant to the settlement of decedents’ estates. I believe that the construction of RSA 561:1, II(a) when such construction “would be

new, ever-expanding birth technologies and the seemingly arcane language and notes that RSA 21:1 precludes the use of the statutory definition of “issue” in as Mr. Khabbaz’s issue. In response to this contention, the majority correctly 21:20, Christine’s mother contends that RSA 561:1, II(a) includes her daughter

of the people. comprehensive response reflecting the considered will each controversy that presents itself. They demand a

examine, within the context of the state’s intestacy statute, the confluence of in the majority opinion. I write separately to respectfully urge the legislature to frustrates a critical purpose of the statute, one different from that articulated lawful lineal descendants of the ancestor.” (emphasis added)). Citing RSA particularly confined by our construction of the word “surviving,” as I believe it (“The word ‘issue,’ as applied to the descent of estates, shall include all the Pursuant to RSA 21:20, Christine is clearly the issue of Mr. Khabbaz

which can only address the specific circumstances of careful examination outside the adversary process, questions present in this case cry out for lengthy, and ethical questions that surround their birth. The

of Rumzi Brian Khabbaz. I concur, however, with some reluctance. I feel purpose, establishes that Christine C. Eng Khabbaz is not the “surviving” issue reading of RSA 561:1, coupled with the majority’s recitation of the statute’s the certified question because I agree with its conclusion that a reasonable BRODERICK, C.J., concurring specially. I join the majority’s response to

concurred specially. DALIANIS, GALWAY and HICKS, JJ., concurred; BRODERICK, C.J.,

in the negative. Accordingly, for the foregoing reasons, we answer the certified question multiply. So, too, will the complex moral, legal, social,

Woodward, 760 N.E.2d at 272.

the number of children they produce will continue to

will grow and advance, and as they do, Massachusetts Supreme Judicial Court observed, reproductive technologies statutory construction would serve to protect posthumous children from taking

would not take. Specifically, the statute provides that: estates contemplated by the legislature. Second, and more important, such a statute could serve to preserve the finality and orderly distribution of intestate the final settlement of the administrator’s account. Such a reading of the posthumous children to take their intestate share as “issue” when born before

hands of the administrator

posthumous child, conceived either before or after the death of the parent, internal timeframe for the distribution of an intestate estate, beyond which a

(Emphasis added.) As such, the statute could reasonably be read to provide for

shall descend or be distributed by decree of the probate court.

not devised or bequeathed . . . and personally remaining in the The real estate and personal estate of every person deceased,

and equality. descendants’ of a decedent (RSA 21:20), observations. First, RSA 561:1 may reasonably be read to already include an of intestate estates would be against the intent of the legislature, I add two distributions indefinitely.” While I agree that inordinate delay in the settlement for the potential birth of a posthumously conceived child could tie up estate conceived posthumously several years after an individual’s death, and waiting 561:1, II(a), the majority notes that “on a practical level, children may be In rejecting the application of the definition of issue in RSA 21:20 to RSA

laws.” (emphasis added)). broad definition and are protected and included as takers under the intestacy issue and the preservation of wealth for them, pursuant to principles of equity after born children come within this intestacy statute; that is, the protection of an intestate decedent’s spouse and statute (RSA 561:1) has been statutorily defined to mean ‘all lawful lineal some cases, I believe that it is important to recognize a critical purpose of the § 54-9, at 93 (3d. ed. 2001) (“[B]ecause the word ‘issue’ as used in the intestacy See 11 C. DeGrandpre, New Hampshire Practice, Probate Law and Procedure This protective purpose has also been recognized by our probate observers. administration of estates, and the reproductive rights of the genetic parent.”). distribution that the legislature clearly contemplated.” interests: the best interests of children, the State’s interest in the orderly inheritance rights under the intestacy statute implicates three powerful State (Mass. 2002) (“[W]hether posthumously conceived genetic children may enjoy see also Woodward v. Commissioner of Social Sec., 760 N.E.2d 257, 264-65

See, e.g., 23 Am. Jur. 2d Descent and Distribution § 4 (2002);

RSA 561:1, II(a) could serve to delay the final settlement of intestate estates in While I agree that an expansive reading of “issue” within the context of

“issue” under RSA 561:1, II(a) “would undermine the finality and orderly context of the same statute.” The majority then concludes that including all chapter 168-B, a class of children who are the fruit of that technology will have p. 11 assisted reproductive technologies are recognized and accepted under RSA

decision today lead to an apparently unintended result — that although and ignores what we know to be his intent. amendments to RSA 561:1. Our rules of statutory construction and our chapter became effective in 1991, prior to both the 1998 and 2003 legislative fertilization, preembryo transfer, and surrogacy procedures. The statutory

were clear. Our reading of RSA 561:1, however, leaves Christine unprotected

comprises a statutory scheme that recognizes artificial insemination, in vitro Far more recently, the legislature enacted RSA chapter 168-B, which

his intent through the use of a will.”). represent the distribution the decedent would have chosen had he manifested distribute a decedent’s estate upon their death in a pattern that would closely children. P.3d 404, 412 (Wyo. 2003) (“The general purpose of intestacy statutes is to

did not execute a will, but his intentions to have and to provide for his child will would have been wholly inoperative.”). In the instant case, Mr. Khabbaz have inherited all his property, as if he had died intestate; in other words, [his] death of her father, and in no way named or provided for in his will, she must would defeat other provisions of his will. Id. at 123 (“Being born after the presumably would take an intestate share of his estate, even if her taking executed a will, and neither mentioned nor referred to Christine, she

See Eyre v. Storer, 37 N.H. 114, 122-23 (1858). Had Mr. Khabbaz

served, for at least 185 years, to protect children, including posthumous Treloar, 151 N.H. 460, 462 (2004). The statute and its predecessors have

clear expression of the legislature’s intent in two related statutes. is accidental, in order to prevent a mistake or unintended failure by the present statute. The resulting anomaly in our holding is underscored by the The statute creates a rule of law, not merely a presumption, that pretermission statute. Such a result is undesirable, although seemingly required under the the deceased were intestate. the same portion of the estate, real and personal, as he would be if in his will, and who is not a devisee or legatee, shall be entitled to child or issue of a child of the deceased not named or referred to

Every child born after the decease of the testator, and every

Within the context of wills, RSA 551:10 provides:

leaves an entire class of posthumous children unprotected under the intestacy To construe the intestacy statute as we have done today essentially

intestate. nothing under a statute intended, at least in part, to protect the issue of the p. 12 12

chapter 168-B, the children produced through such technologies, the parents’

both posthumous conception and the support of any resulting child.

course of action. other cases that have addressed related situations, in deciding the optimum

who avail themselves of the assisted reproductive technologies outlined in RSA with Social Security Administration). I believe that the parents of this state deceased parent under state’s intestacy law in order to pursue survivor benefits Ct. Ch. Div. 2000) (posthumously conceived children declared legal heirs of the child and the decedent, and where the decedent affirmatively consented to circumstances existed where a genetic relationship is demonstrated between See, e.g., In re Estate of Kolacy, 753 A.2d p. 12 1257 (N.J. Super. take under the Commonwealth’s intestacy statute. Those limited pertinent statutes of those states cited in the majority opinion, and the few reproductive rights of the genetic parent. legislature to examine Woodward v. Commissioner of Social Security, the While I concur with the majority opinion, I respectfully urge the for consanguineous descendants,” succession rights on behalf of a posthumously conceived child. Id. that certain time limitations might preclude commencing a claim for 259, 272. Even when such circumstances existed, however, the court noted

that in certain limited circumstances, posthumously conceived children could

of the best interests of children, the orderly administration of estates, and the death of the parent. In virtually all other respects, id. at 264), and balanced the state interests those posthumous children conceived before, and those conceived after the 262. The court then looked to the purpose of the provision (“to preserve wealth 190, § 8 (2004). The Massachusetts statute does not distinguish between posthumous children to those in utero at the time of the parent’s death. Id. at the posthumous children provision did not, on its face, limit the definition of Woodward, 760 N.E.2d at 259. The Supreme Judicial Court recognized that death, was entitled to take under the Commonwealth’s intestacy laws. and artificial insemination between a husband and wife, after the husband’s District of Massachusetts asked if a child conceived, through sperm banking The certified question from the United States District Court for the

hand are the same.

be considered as living at the death of their parent.” Mass. Gen. Laws Ann. ch. Commonwealth’s intestacy statute. Specifically, “[p]osthumous children shall schemes, that difference centers on a “posthumous children” provision in the distinguishable from the instant case because of a difference in our statutory Commissioner of Social Security. While I agree that Woodward is the reasoning of the Supreme Judicial Court of Massachusetts in Woodward v. Finally, we have rejected Christine’s mother’s argument that we adopt

See Woodward, 760 N.E.2d at 265. fewer rights and protections than other children when intestacy is involved. p. 13 13

estates deserve such legislative focus. lineal descendants, and those charged with the administration of intestate