Judge Finds Remains of Fetus Not Marital Property

, New York Law Journal

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ALBANY - The cremated remains of a stillborn fetus are not marital property and belong solely to the mother under statutory and common law precepts of reproductive rights, a judge in Albany has held in a case of first impression.

Acting Supreme Court Justice W. Dennis Duggan (See Profile) held that the remains of Elijah Jackson are the separate property of the mother, and the father is not entitled to half the ashes as marital assets. Duggan's decision in Jackson v. Jackson, 2051-13, hinged in part on the biological fact that a woman is born with all the eggs she will ever have while the male produces sperm cells every day.

"The [mother] clearly owned, prior to the marriage, the egg from which the fetus developed," Duggan wrote in his final decision before retiring. "On the other hand, the [father] impregnated the petitioner with sperm he acquired after the marriage."

Elijah, who was stillborn at 26 weeks, was the product of the brief marriage of Shaciya and Keiwanis Jackson. The parents separated shortly after Shaciya suffered a miscarriage, and less than two years after they were married. Their divorce raised common issues of property distribution, and the uncommon question of whether fetal remains constitute marital property.

Duggan noted that Domestic Relations Law §236 defines marital property as that which is acquired by either or both spouses during the marriage and defines separate property as that which is acquired before marriage.

Here, Duggan said, the ashes are clearly property and "are clearly not separate property…because the [mother] was both impregnated by the respondent and she miscarried during the marriage." He said the mother's eggs, produced at her birth, and the father's sperm, produced during the marriage, co-mingled.

"Obviously, once there was a live birth, a person is created and all notions of property ownership as between the parents with respect to the baby evaporate," Duggan wrote. "On the other hand, there is no way to characterize or to measure an enhanced value of a 26 week old fetus that was produced by the joining of the mother's egg and the father's sperm, regardless of when each contribution was made."

Duggan said that under the Domestic Relations Law, ashes are not, by definition, separate property and therefore must be marital property subject to distribution. Regardless, the judge found, public policy giving the woman sole power over her pregnancy compels a conclusion that fetal remains are separate property.

"Unless legislated otherwise, the public policy of this State would lead to a conclusion that fetal remains, in whatever form, are separate property," Duggan wrote. "That public policy is found in the statutory and common law of reproductive rights in this state. That law gives to the woman full control over the progress and outcome of her pregnancy without veto power by a husband or putative father."

Duggan said that while a woman could "confer a property interest in fetal remains to a husband, unless that was clearly shown to be the case, the ashes of her stillborn birth should be presumed to be her separate property."

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