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Captain's Widow Seeks Pension Benefits for Son Conceived Through IVF

Captain's Widow Seeks Pension Benefits for Son Conceived Through IVF

Retired Police Captain Gary Prystauk in this 2006 file photo.

The Star-Leger via YellowBrix

January 23, 2011

NEWARK — Francia Prystauk stood before state pension board members earlier this month with a kind of story they had never heard before.

Her husband Gary, a retired Newark police captain, had died in a scuba diving accident in 2006, and she was there to seek pension benefits for their son. A routine enough request, except for one crucial detail — the child was conceived after her husband’s death.

Doctors had removed her husband’s sperm within hours of his death. The following year, Prystauk, became pregnant through in vitro fertilization and gave birth to Jacob Gary Stephen Prystauk nine months later.

He’s now 3 years old and recognized by court order as Gary Prystauk’s son. But is he entitled to pension benefits?

The police and firefighter’s pension board simply doesn’t know what to do. So it is referring the case to the Attorney General’s Office for legal review.

Board chairman John Sierchio said pension rules don’t take into account the scientific advances that allow for posthumous conception.

“We’ve never had this type of issue before,” he said. “There’s a lot at stake here, and we just want to get it right.”

For Prystauk, the issue is crystal clear.

“Jacob had a father,” she said. “He just happened to pass away.”

If the board rules in her favor, she will receive an additional $1,282.05 a month, on top of the monthly $5,598 she receives as the widow of a retired police officer.

Danette Molina, Prystauk’s lawyer, said the state does not have laws on the rights of posthumously conceived children.

In a letter to the pension board, she references the case of a New Jersey couple, where the husband donated sperm before undergoing chemotherapy. After treatment failed and he died, the widow used the sperm to become pregnant and gave birth to twins in 1996, 18 months after the husband’s death. A Superior Court judge agreed that the children should be considered his legal heirs.

Earlier this month, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia made a similar ruling, saying the posthumously conceived twins of an Essex County widow should receive Social Security benefits from her late husband, who donated sperm before his death. The court added that it “cannot help but observe that this is, indeed, a new world.”

However, in Prystauk’s case, the sperm was not retrieved until after death. Still, Ivette Alvarez, a family law attorney at a Denville firm, said legal precedent is on Prystauk’s side.

“The only difference is the husband was not alive when he donated the sperm,” she said. “But should that deprive the child of the benefits of being his father’s son?”

During 18 years of marriage, the Prystauks tried to have children several times, but their plans were derailed by miscarriages. Each one weighed heavily on Gary Prystauk, who was eager to start a family, his widow said.

“He saw that dream further and further from his reach,” said Prystauk, 40, who lives in Clark. “He wanted to be a father so bad.”

Finally, in November 2006, she convinced him to visit a fertility clinic with her.

Two weeks later, he died in a scuba diving accident in the Shrewsbury River at the age of 50. Doctors said he had a heart attack while underwater.

When Prystauk arrived at the hospital and learned that he died, she fumbled through her belongings to find a phone number for his parents. The business card for the fertility clinic fell out of her wallet.

“I had a moment of clarity,” she said. “I took it as a sign.”

She asked the doctors if they could remove her husband’s sperm. They had to act quickly, before the body began breaking down, and a specimen was removed about six hours after his death. The following month Prystauk began fertility treatments.

The actual conception occurred in March 2007. Doctors had to use the entire specimen — this would be Prystauk’s only chance. But the procedure worked, and she became pregnant.

“I was ecstatic,” said Prystauk’s younger sister, Vanessa Fernandez. “The ultimate dream was going to come true for her.”

Jacob was born on Dec. 7, 2007.

The pension board denied benefits in February 2008 because Jacob was born 12 months after his father’s death.

Prystauk didn’t give up and secured a court order in Union County recognizing Jacob as Gary Prystauk’s biological son.

“Can he be seen as a surviving child?” Molina said. “There should be no difference.”

Prystauk said she’s trying to raise Jacob like Gary would want her to. She bought him a children’s scrapbook and attached family photos. Jacob recognizes each one, she said.

“He goes, ‘Daddy, mommy, baby Jacob,’ ” she said. “He knows who his daddy is.”

  • Photo_user_blank_big


    over 3 years ago


    For those of you who say yes to the payout:
    Would your answer still be yes if the widow had adopted a child after the Captains death as long as they had been planning on adopting prior to his death?
    Is there a difference? After all, an adoption makes a child as much "theirs" as DNA does.
    I'm not giving my opinion,just throwing in a little perspective for an obviously emotional issue.

  • 1979_max50


    over 3 years ago


    Hard to believe so many of my friends have such a different opinion than me on this one. It is not a matter of many. The FACTS are this, the Captain and his wife were trying very hard to have children and we so desperate they were going to a fertility clinic. The Capt. died before he was able to achieve their dream of having a child. With very sound thinking she had the sperm of her loved one quickly removed and saved so that she could conceive the child that they both wanted and it would be a part of him that everyone who loved him could hold on to. His legacy if you want.
    The additional fact is the Capt. paid into a pension policy that will pay for his siblings until they are 18 yrs old or whatever. His wife managed to have HIS child through the miracle of science and so honor him.
    Now you wish that this child, not the mother, cannot obtain what should be legally his?
    This is not the same as someone who just goes to a sperm bank to get someone's sperm to get pregnant. This was her husband who she loved and who had just died and who she knew wanted a child to carry on his genes.

  • Photo_user_blank_big


    over 3 years ago


    I so agree with everyone who said YES, she should receive benefits! That little boy is God's gift, most definitely a miracle. The Officer went to a fertility clinic with his wife, he WANTED children. As ssu459 says "The bottom line, my friends, is this IS their child."

    There is no doubt in my mind that Jacob has a very special Guardian Angel, HIS DADDY!

  • Photo_user_blank_big


    over 3 years ago

    The bottom line,my friends ,is this IS their child.Makes not a difference in what manner he was concieved.I don't hear anybody whining about able bodied welfare recipients refusing jobs and walking home with thousands in tax payers money.Let's start,for once,in this country to give the same breaks to the working class as we give to the LAZY class.

  • Forethought_normal_max50


    over 3 years ago


    I don't think she should receive additional payment. This was her choice to do this. She already receives $67,000 per year on top of any income of her own. Where I come from, that is a lot of money.

  • 19227-clipart-illustration-of-a-black-and-white-coloring-page-of-a-magical-flying-phoenix-bird_max50


    over 3 years ago


    bump DocThomas

  • 19227-clipart-illustration-of-a-black-and-white-coloring-page-of-a-magical-flying-phoenix-bird_max50


    over 3 years ago


    As a Christain, I belive that God allowed this child to be born...He wouldn't have given this life to this woman to take care of if she couldn't do it!!! This woman Was married, and she had every right to do what she did.

    However, just be careful with the ruling, because now woman will have another reason to get money from their dead husbands....just be careful people!!!

    The child shouldn't be left in the dark...he didn't ask to be born...God allowed him...he is obviously meant to do something good with his fathers legacy!

  • Jamie_max50


    over 3 years ago


    I don't think she should get it. Don't get me wrong, I think it's wonderful that she was able to carry on her Husband's legacy, but she knew she was going to have to raise the child alone and I don't think she should benefit financially.

  • Draped_badge_max50


    over 3 years ago


    Or my child is a police officer and before he/she has the chance to start a family is killed or dies...I harvest eggs/sperm after death and hire a surrogate mother..The child will be just as loved as theirs, should the state carry the burden? Being that a substantial death benefit was already paid out?

  • Draped_badge_max50


    over 3 years ago


    Think with your heads and not your heart on this one...The legal precident this would set is ridiculous. Also who says the Captain wanted his sperm removed after death? it was a conscious decision made by a female to conceive a child out of wedlock.

    Would I do it hell yes, would I put a claim like that in no way!!! Just like I wouldn't consciously conceive a child I couldnt afford to take care of.

  • Draped_badge_max50


    over 3 years ago


    The fact is that I could technically go down to the sperm donor place and get the sperm of an officer and then turn around and make the state pay for the child because this guy donated his sperm. And I am not repeat NOT saying this child was not conceived out of a strong love...But the principal is the same. There is a reason NY and NJ are in such financial mess, misuse of pensions...Throughout all city agencies.

  • Blue_crop380w_max50


    over 3 years ago


    I think many of you forget who the giver of life really is. IMHO, if God didn't want this child to be born, HE WOULDN"T HAVE BEEN, regardless of what methedology was was performed to achieve such ends! But the fact remains that he was, no matter what our opinions of the widows intentions are. The child, and I stress, "THE CHILD" deserves the compensation that his father worked so hard to provide before his untimely death. She isn't demanding a gross amount of money, she is respectfully requesting the means by which to provide for "THEIR SON"! Flame me if you want to, but I stongly believe the Captain and his family deserve our support.

  • Draped_badge_max50


    over 3 years ago


    Why should the state carry the liability of a birth after death,,,its completely wrong. I would have done the same thing myself but never would I ask that the state carry the burden.

    At some point, the handouts have to stop..

  • Fallenherobadge-3-1_max160_max50


    over 3 years ago


    The kid is his...they were trying, so there is no question he wanted one as much as she did. Science has allowed this to occur...Robocop33 hit this one out of the park! Good job!

  • 321509_10150337897876897_990467885_n_max50


    over 3 years ago


    less than a minute ago

    BUMP Robocop33!

    I see nothing wrong with what she did. Obviously they had looked into fertility treatments before if a card from the fertility clinic fell out of her wallet. If I had a husband whom I was trying to have a child with, it would break my heart if something were to happen to him, and I had never been able to concieve. I know some people see it as a possible motive for money, but I can see how she would want to have that last opputunity to be able to have a child for him. To have a child that is part of him has to be a joy for her. Losing a spouse is hard enough, but it has to be a lot harder knowing that you have lost someone, and was never able to have a child with him, when that was wanted so badly. The child is definitely a blessing for this woman. I see her experience of being able to have a child for her love as a positive thing. This child should be taken care of.

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