Entry 903: Sex, Death and the Law

Sex and lawyers are like chocolate and kale: most people like one, a few people like the other, and nobody much cares for the result when you put them together. Especially when you sprinkle some fatalities on top.

Take, for example, the death in France of a man identified only as “Xavier X.” Xavier, an engineer, was on a business trip when he had a heart attack and died. Xavier’s wife wanted to obtain death benefits from his employers.

However, Xavier’s employers, a Paris railroad company, believed the company was not responsible for Xavier’s fatal mishap since, at the time of his heart attack, he was with a woman he had just met and engaged in an activity which was not technically part of his job description. Let’s just say it had gone far beyond a French kiss, and that Xavier X was one “X” short of a very appropriate monogram.

(I’ll get to the outcome of this story in a moment. But first, an aside about online news coverage. You can’t have an article without a photo and, evidently, there was a consensus among news outlets about what sort of picture goes with a story like this, and, when I Googled it, I discovered that, apparently, there are many different stock photos of feet having sex.)

Anyway, the French courts ruled that Xavier died as a result of an “accident du travail”–a work accident–and thus his wife was entitled to benefits.

The courts were kind enough to reveal their logic. It went something like this (which I am not making up):

“An employee on assignment is entitled to their employer’s protection for the duration of their mission … whether or not the accident takes place as part of a professional activity or as an act of normal life. A sexual encounter is an act of normal life like taking a shower or eating a meal.”

I have two thoughts about this:

  1. How can a heart attack be a workplace accident no matter where it occurs? It’s not an accident at all. It’s not like people often trip and have a heart attack.
  2. Perhaps only in France could having an adulterous liaison with a complete stranger be regarded as an act of normal life.

But good for Xavier’s wife, I say. She got his benefits without having to go through a messy divorce. But now let’s cross the Atlantic to New York City, where another widow has not been as fortunate. Her name is Pai Xia Chen, and her husband was an NYPD detective named Wenjian Liu. Detective Liu, who I actually wrote about back in 2015, was killed in the line of duty, and Chen is trying to get Social Security benefits for their daughter. Unlike the aforementioned Xavier, Liu was wearing his work clothes at the time of his death, so it would seem pretty straightforward that the child he had with Chen would be entitled to benefits. Except for one minor detail: The child wasn’t born until after Liu’s death. Three years after his death.

I know what you’re thinking: “That sounds like a really long gestation period, and they should have induced labor around month fourteen.” Jeez, you’re an idiot. Obviously, Chen wasn’t enceinte (as Xavier X. would say) for those three years. She waited a respectable length of time before getting pregnant with her dead husband’s baby using, as I hope you’ve guessed, some of her dead husband’s preserved sperm.

The Social Security Administration defers to individual state rules in such instances, and New York State does not make a benefit allowance for posthumously-conceived children. One State Senator, Andrew Gounardes (D-Brooklyn), has introduced a bill to change that.

“Families like Detective Liu’s who suffer a terrible unexpected loss should not be prevented from receiving what is theirs because of antiquated laws,” he said. “Assisted reproductive technology after one partner dies is now a true option for families that deal with tragedy, including first responders in the line of duty.”

This is one of those times when a statement sounds perfectly logical, but you still want to respond with, “Yes, but . . .”

In this case, it would be, “Yes, but, you say ‘families like Detective Liu’s.’ However the child in question was not part of Detective Liu’s family at the time of his death.”

Science has really created a gray area here. On one hand, I don’t think anyone would have an issue with providing benefits to the child if Pai Xia Chen had been pregnant with her at the time of Liu’s death. On the other hand, if Chen adopted a kid after Liu’s death, I think there’d be a pretty good argument for not awarding benefits.

So where does this child fit in? If benefits are intended for the surviving family of the person who died, should we now include sperm in that? Will obituaries start saying things like, “John passed away suddenly of a heart attack. He is survived by his wife Joanne, his son Mike, and three tubes of jizz.”

I think of it this way: if you decide to have more children after your spouse dies, why should tax payers help support them? Those kids haven’t suffered “a terrible unexpected loss” because they weren’t around when the person died. If you’re pregnant, fine; I’m not suggesting you should get an abortion. But the key is you’re not taking action to add to your family knowing your spouse will not be there.

In other words, we should treat this situation like a movie, and the operative phrase should be “in production.” Benefits go to the spouse, to completed children, and to any kids that are in production at the time of the death. That covers the pregnancy. The cells in the test tube are the equivalent of a screenwriter’s first draft that hasn’t been optioned by a studio. There should clearly be no benefits then.

Now, someone might say, “But what if it was a frozen embryo?” Hmm. I’d reply that maybe the movie had been cast, but filming hadn’t begun. Still no benefits, I say, unless you can make a deal with Netflix.

But here’s the big question. What if Xavier got that woman pregnant in Paris? Would that kid be entitled to benefits?

Think on that for awhile, and see you soon.

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