UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Christine C. Eng Khabbaz, et al.

v. Case No. 06-cv-206-PB

Jo Anne Barnhart, 

Commissioner of Social Security

ORDER CERTIFYING QUESTION

TO THE NEW HAMPSHIRE SUPREME COURT

Christine C. Eng Khabbaz was conceived after her father’s

death via artificial insemination. Her eligibility for Social

Security survivor’s benefits depends upon whether she can inherit

from her father under New Hampshire intestacy law. The Social

Security Commissioner denied Christine’s application for

survivor’s benefits based on its interpretation of N.H. Rev.

Stat. Ann. § 561:1, which permits a deceased’s “surviving issue”

to inherit some or all of the decedent’s estate upon a

determination of intestacy. Christine has filed an action in

this court challenging the Commission’s interpretation of New

Hampshire law. Because the case turns on an important and

unresolved question of New Hampshire law, I certify the question 

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that appears at the end of this order to the New Hampshire

Supreme Court.

I. BACKGROUND

1. Donna M. Eng and Rumzi Brian Khabbaz were married on

September 17, 1989. (Transcript (“Tr.”) at 105). On August 18,

1995, their son, Daniel, was born. (Tr. at 42).

2. In April 1997, Mr. Khabbaz was diagnosed with a

terminable illness. (Tr. at 44).

3. Subsequently, Mr. Khabbaz began to bank his sperm so

that Ms. Eng could attempt to conceive a child through artificial

insemination. (Tr. at 45). On February 26, 1998, Mr. Khabbaz

executed a “Supplemental Consent to Use of Sperm or Embryos by

Spouse” which stated the following:

I, Brian Khabbaz, hereby consent to the use of

my sperm samples, which are presently stored

at Boston IVF and intended to be transferred

to Massachusetts General Hospital or such

other facility as she or I designate, by my

wife, Donna Eng, for the purpose of attempting

to achieve a pregnancy. I also consent to my

wife using my sperm samples or any embryos

created by my sperm samples after my death or

incapacity for any purpose she desires. Should

my wife become pregnant as a result of my

sperm samples, whether through artificial

insemination or embryo creation and transfer,

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it is my desire and intent to be legally

recognized as the father of the child to the

fullest extent allowable by law whether I am

alive or deceased at the time of use of the

sperm or embryos or birth of any child so

conceived.

(Tr. at 103).

4. Mr. Khabbaz died on May 23, 1998, while domiciled in

New Hampshire. (Tr. at 60).

5. After Mr. Khabbaz’s death, Ms. Eng conceived a child

through artificial insemination using Mr. Khabbaz’s banked sperm. 

(Tr. at 106-11). On July 8, 2000, plaintiff Christine C. Eng

Khabbaz was born. (Tr. at 113).

6. On or about August 23, 2000, Ms. Eng, on behalf of

Christine, filed an application for Social Security survivor’s

benefits (i.e., child’s insurance benefits) based on the earnings

record of Mr. Khabbaz. (Tr. at 60-61).

7. The Social Security Administration denied the

application initially and upon reconsideration. (Tr. at 64,

69-73).

8. On October 21, 2003, a hearing was held before an

Administrative Law Judge (“ALJ”). (Tr. at 37-59). On May 6,

2004, the ALJ issued a decision that Christine [wa]s not entitled

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to child’s insurance benefits based on the earnings record of Mr.

Khabbaz. (Tr. at 25-35).

9. On March 29, 2006, the Appeals Council of the Social

Security Administration issued a final decision that Christine

[wa]s not entitled to child’s insurance benefits under section

216(h) of the Social Security Act, 42 U.S.C. § 416(h), on the

record of Mr. Khabbaz, because it was the opinion of the Appeals

Council that Christine could not inherit from him under New

Hampshire intestacy law. (Tr. at 2-8). Specifically, the

Appeals Council ruled that Christine could not inherit from Mr.

Khabbaz under New Hampshire intestacy law because it interpreted

New Hampshire law to allow an intestate estate to pass only to

the “surviving issue” of an intestate decedent, see N.H. Rev.

Stat. Ann. § 561:1, and therefore barred inheritance by any

biological offspring not conceived before the death of the

intestate decedent. (Id.)

10. On May 31, 2006, plaintiff filed the instant action

challenging the final decision of the Commissioner of Social

Security pursuant to 42 U.S.C. § 405(g).

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1 If an applicant does not qualify as a “child” under Section

416(h)(2)(A), the Act provides three other mechanisms for

establishing “child” status. See 42 U.S.C. §§ 416(h)(2)(B),

416(h)(3)(C)(I), 416(h)(3)(C)(ii). None of these mechanisms is

applicable here, however.

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II. CERTIFIED QUESTION

The New Hampshire Supreme Court’s answer to the certified

question will resolve this action because, under the Social

Security Act (the “Act”), an individual who is the “child” of an

insured wage earner and is dependent on the insured at the time

of his death is entitled to child’s insurance benefits. 42

U.S.C. § 402(d)(1). In determining “child” status, the Act

instructs the Commissioner:

In determining whether an applicant is the

child . . . of a fully or currently insured

individual for purposes of this subchapter,

the Commissioner of Social Security shall

apply such law as would be applied in

determining the devolution of intestate

personal property . . . by the courts of the

State in which [such insured individual] was

domiciled at the time of his death . . .

Applicants who according to such law would

have the same status relative to taking

intestate personal property as a child of

parent shall be deemed such.

42 U.S.C. § 416(h)(2)(A). 1 Thus, if Christine may inherit from

Mr. Khabbaz as his surviving issue under New Hampshire intestacy

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3 Under the Act, a claimant must also show that she “was

dependent upon” the deceased wage earner “at the time of [the

wage earner’s] death” in order to be eligible for child’s

insurance benefits. 42 U.S.C. § 402(d)(1)(C)(ii). A claimant

who qualifies as a “child” pursuant to Section 416(h) is “deemed

to be the “legitimate” child of the wage earner, and is thus

automatically “dependent” upon the wage earner under the Act. 

See 42 U.S.C. § 402(d)(3); 20 C.F.R. § 404.361(a). Therefore, if

Christine qualifies as the “child” of Mr. Khabbaz pursuant to

Section 416(h) of the Act, i.e., if Christine can inherit from

Mr. Khabbaz as a surviving issue under New Hampshire intestacy

law, then she is “deemed” dependent upon Mr. Khabbaz and is

entitled to child’s insurance benefits. 

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law, she is considered to be the “child” of Mr. Khabbaz under the

Act and is therefore entitled to child’s insurance benefits.3

The New Hampshire Supreme Court has not yet addressed the

question of New Hampshire law on which this case depends. 

Accordingly, I certify the following question to the New

Hampshire Supreme Court: 

Is a child conceived after her father’s death

via artificial insemination eligible to

inherit from her father as his surviving

issue under New Hampshire intestacy law? 

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

October 3, 2006

cc: Timothy Kerrigan, Esq.

Preeya Noronha, Esq.

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