Police, firefighter's pension board referred unusual case to Attorney General's Office
Retired Police Captain Gary Prystauk in this 2006 file photo.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 $4,273.50 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.
In this 1998 file photo, Gary Prystauk, then-supervisor of the Newark Police Department's Ballistics Laboratory, testifies in Essex County state Superior Court about a murder weapon at the penalty phase of the trial of Roger Hoyte, who pleaded guilty to the murders of three taxi drivers. “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.”