Should Children Posthumously Conceived By In Vitro Fertilization Qualify for Social Security Survivor Benefits?

When Congress in passed the 1939 Social Security Act, it never imagined the advances in reproductive technology that would occurring over the coming decades. That Congress never imagined that in vitro fertilization would become a widespread technology that would enable medical professionals to fertilize an egg with sperm in a laboratory. Now, in vitro fertilization has created a tricky Social Security issue that is  before the U.S. Supreme Court: can a child conceived by in vitro fertilization after his or her father’s death be eligible for Social Security survivor benefits? Or put differently: can a child be a survivor of a father when the father was already dead when the child was conceived?

In Astrue v. Capato, Robert Capato was diagnosed with esophageal cancer in 2001. Before beginning cancer treatments, he deposited sperm at a fertility clinic. Robert’s healthy rapidly deteriorated, and he died in March 2002. Eighteen months after Robert’s death, his widow Karen gave birth to twins that were conceived through in vitro fertilization using the sperm that Robert had left at the fertility clinic.

After the twins’ birth, Karen applied for Social Security survivor benefits for the children. An administrative law judge (ALJ) denied the survivor benefits claim. The ALJ explained that the 1939 Social Security Act looked to state law to determine whether a benefit seeker is eligible to inherit property and thereby qualify as a survivor. As the twins could not inherit Robert’s property under Florida law, the ALJ ruled that twins did not qualify as survivors.

Karen appealed the ALJ’s ruling, and a federal appeals court reversed. The appellate court held that the twins qualified as survivor under a different definition in the 1939 law in which an eligible child is defined as “the child or legally adopted child of an individual.

The Washington Post notes that this appellate ruling created a circuit split since other federal appellate have held – just like the ALJ – that state law is the place to look for survivorship eligibility. As a result, the U.S. Supreme Court granted certiorari to hear the case.

NPR reports that during oral arguments, several justices admitted that the situation was a mess and that the 1939 law was ambiguous as to what constitutes a survivor or a child. In particular, the justices voiced confusion over Karen’s contention that the 1939 Act “should cover the biological child of married parents”:

What about a child born into a marriage but not a biological child, asked Justice Sonia Sotomayor. She wondered what would be the outcome if Karen Capato remarried but used her deceased husband’s frozen sperm to conceive.

Justice Ruth Bader Ginsburg pressed Rothfeld on whether the marriage between the Capatos ended with his death.

Justice Antonin Scalia wondered how children could be “survivors” if they were not conceived before their father’s death.

“What is at issue here is not whether children that have been born through artificial insemination get benefits,” Scalia said. “It’s whether children who are born after the father’s death get benefits.”

In addition, Chief Justice Roberts suggested that the court could take the traditional approach of deferring to a federal agency’s interpretation of a statute when the statute is ambiguous.

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