Life After Death: Survivor Benefits for Posthumously Conceived Kids

Last week, a federal appeals court ruled that children born though in virto fertilization long after their father died cannot be denied Social Security survivor benefits solely because they could not inherit under state law.

“It goes without saying that these technologies were not within the imagination, much less the contemplation, of Congress when the relevant sections of the act came to be, and that they present a host of difficult legal and even moral questions  . . . . We [] cannot help but observe that this is, indeed, a new world.” U.S. Circuit Judge Maryanne Trump Barry said in Capato v. Commissioner of Social Security.

The Court considered “the intersection of new reproductive technologies and what is required to qualify for child survivor benefits under the Social Security Act (the “Act”).

The wage-earner father was diagnosed with cancer and began treatment which rendered him sterile. Before he started treatment, he deposited his semen in a sperm bank where it was frozen and stored. Eventually he died and his wife began in vitro fertilization giving birth to twins eighteen months after her husband’s death. A month after the children were born:

Ms. Capato applied for surviving child’s insurance benefits on behalf of the twins based on her husband’s earnings record. The Social Security Administration denied her claim, and Ms. Capato timely requested a hearing before an administrative law judge (“ALJ”). A hearing was held on May 30, 2007, with testimony taken from Ms. Capato and two friends. On November 28, 2007, the ALJ rendered his decision denying Ms. Capato’s claim. Observing that “[t]his is a case where medical-scientific technology has advanced faster than the regulatory process,” and that this is a “very sympathetic case” in which “allowing benefits would appear to be consistent with the purposes of the Social Security Act,” the ALJ nonetheless believed himself “constrained by applicable laws and regulations to find disentitlement.” Finding that the twins, conceived after the death of their father, “are not for Social Security purposes the ‘child(ren)’ of the deceased wage earner, Robert Capato, under Florida state law as required by section 216(h)(2)(A) of the Social Security Act,” the ALJ concluded that they were not entitled to child’s insurance benefits in accordance with sections 202(d)(1) and 216(e) of the Act and the relevant regulations. The District Court affirmed, echoing the ALJ’s interpretation of the Act and his conclusion that Mr. Capato was domiciled in Florida on the date of his death and, thus, that Florida’s law of intestacy should be applied.

The Court of Appeals reversed the lower court’s decision, finding that the twins were in fact Mr. Caputo’s “child” and that the plain meaning of the legal term “child” was not disputed. “The term “child” in § 416(e) requires no further definition when all parties agree that the applicants here are the biological offspring of the Capatos.”

The Court concluded that:

although biological paternity can now be scientifically proven to a near certain degree of probability, modern artificial reproduction technologies currently allow for variations in the creation of child-parent relationships which are not solely dependent upon biology. The use of donor eggs, artificial insemination, and surrogate wombs could result in at least five potential parents. Accordingly, even in modern times, the basic assumption underlying the reasoning–that biological paternity always results in an ‘undisputed’ child-parent relationship–is unfounded.

To be sure, as the Ninth Circuit put it, “[d]eveloping reproductive technology has outpaced federal and state laws, which currently do not address directly the legal issues created by posthumous conception.” As we have noted, the more difficult of those legal issues are not before us. What is before us is a discrete set of circumstances and the narrow question posed by those circumstances: are the undisputed biological children of a deceased wage earner and his widow “children” within the meaning of the Act? The answer is a resounding “Yes.”

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