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Children Conceived After Death of Parent Face Uphill Battle for Inheritance Rights

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Melissa Amen and her 3-year-old daughter, Kayah, whom she conceived after the death of her husband through assisted reproductive technology. (Melissa Amen)

Melissa Amen conceived her 3-year-old daughter, Kayah, seven days after Kayah's father died of cancer.

"It's my miracle," the 28-year-old Nebraska resident told FoxNews.com. Melissa and her husband, Joshua, struggled for two years to have a child before she conceived through intrauterine insemination. Joshua had stored his sperm in a bank in case treatments for his cancer rendered him sterile. They were planning to raise a family together despite his three-year battle with cancer.

Now Amen faces her own battle: Winning Social Security benefits for Kayah from a federal government that, in essence, doesn't recognize Joshua as the father.

The Social Security Administration denied Melissa's application seeking survivor benefits for Kayah because she was conceived after the death of her father.

"I was so frustrated. I didn't know what to do," Amen said. "I knew I had to fight for her benefits."

Amen, who is challenging the decision in federal court, is not alone. 

The use of assisted reproductive technology, such as in vitro fertilization and artificial insemination, is becoming more widespread among U.S. troops and cancer patients as they are increasingly banking their sperm to prevent a premature death or sterility-inducing injury from allowing them to have children, observers say.

Yet only 11 states recognize the biological relationships of children conceived posthumously: California, Colorado, Delaware, Florida, Louisiana, North Dakota, Texas, Utah, Virginia, Washington and Wyoming.

Other states grant inheritance rights to children born after one parent dies only if conceived naturally. And although the Social Security Administration generally oversees benefits, it defers to states when determining parentage and children's inheritance rights.

Iowa is close to changing its law to allow children conceived up to two years after a parent dies to receive inheritance rights and Social Security benefits. The Iowa House passed the bill last month and the Senate approved it this week.

State Rep. Jeff Kaufmann, a Republican, teamed up with University of Iowa law professor Sheldon Kurtz to author the bill after hearing about Patti Beeler's struggle to obtain Social Security benefits for her 8-year-old daughter, Brynn Beeler. 

Brynn was born 23 months after her father, Bruce, died of Leukemia in 2001. Bruce Beeler had stored his sperm before chemotherapy treatment and urged his wife to have his children even if he didn't survive, according to an affidavit filed by his wife.

But the bill will not help Beeler's struggle because it is not retroactive.

Kurtz, who worked with Kaufmann for the last two years on the bill, said he wanted to help the children of troops who died in war or men who died of cancer.

"It's the morally correct thing to do," he told FoxNews.com.

Kurtz is a commissioner with the Uniform Law Commission, which drafts bills on complex legal issues that states can ratify individually.

One of the projects the commission took on was drafting bills for children born through assisted reproductive technology.

"The law adopted from common law never had to deal with it," he said. "Medicine outpaces law and you need to change the law on life that gets impacted."

But some don't expect other states to follow Iowa's lead.

Maureen McBrien, a Boston lawyer who represents Amen, said it will be a case-by-case issue, where some states will consider it and others won't.

"I don't think it's a large enough issue that state legislators will respond by changing the law," she said. "I don't see it happening on a widespread basis."

McBrien says there are questions as to whether the Social Security Administration should depend on state law to decide who gets the benefits.

"It's a federal benefit that is implicated by state law," she said. "The arguments being made in this case, why are we looking at state law? Is that fair? It's an equal protection."

Steven Snyder, an attorney in Minnesota and vice chairman of the American Bar Association committee on reproductive technology, told FoxNews.com that it's unlikely federal lawmakers would act to amend a law that would have a tremendous economic impact on Social Security.

"Let's just look at the effect of that to open up the potential number of beneficiaries for an already strained Social Security system to include more people," he said. "Could there be resistance solely on economic benefit? I imagine there's going to be legislative inertia."

But Amen is hopeful that more states will step up and change the laws that haven't kept up with medical science.

Posthumous conception is "a difficult process and an emotional one," she said. "On top of trying to get benefits for your child, you're going through the mourning of your husband. It's something the states need to look at and decide what to do."