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The Supreme Court Meets Frozen Sperm

By Amy Burns, Stanford Law School, JD expected 2012

On November 14, the Supreme Court agreed to hear a case on whether children conceived after the death of their father (with his frozen sperm) are eligible for his social security survivor benefits.

The Case, Astrue v. Capato, was originally brought by Karen Capato, a mother of twins she conceived via in vitro fertilization after her husband died of cancer. (The couple had frozen his sperm before he began cancer treatment.) The question is whether the twins are Mr. Capato’s “children” for purposes of the Social Security Act. The District Court in New Jersey held that they were not, since the intestacy law of the state where the husband was domiciled at the time of his death, in this case Florida, would not allow the twins to inherit. The Third Circuit reversed, finding it unnecessary to reach that question when there was no dispute as to biological parentage. The Government petitioned for certorari, and the Supreme Court will hear argument, probably in March or April, on which approach is the right one.

The Court will likely treat this question as a matter of basic statutory interpretation. The Social Security Act contains the following relevant provisions:

•402(d)(1): Benefits for “every child (as defined in section 416(e) of this title) of. . . an individual who dies a fully or currently insured individual.”

•416(e): Child means “the child or legally adopted child of an individual.” (Also certain stepchildren, grandchildren, or stepgrandchildren.)

•416(h)(2)(A): To determine if someone is a “child,” the Commissioner “Shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the wage earner was] domiciled at his time of death.”

The main disagreement between the courts in this case was whether the 416(h)(2)(A) analysis (looking to state intestacy law) is mandatory in every case, or whether a court should only look to state law where there is some uncertainty as to parentage. Surely the parties will make the usual sorts of arguments about the text of the statute, the legislative history, the statute’s purposes, and the way the Social Security Administration has interpreted it over the years.

But more interesting is the question of what the “right” answer is – should these children get survivor benefits? Would extending or denying them be likely to change the reproductive behavior of would-be parents? Would denying benefits be discriminating against posthumously conceived children as a class? (Courts thought not, at least in any constitutionally significant way). There is certainly an argument that applying for these benefits is a form of “gaming the system.” Aren’t survivor benefits meant to help support children after an unexpected loss? On the other hand, there’s a note of cruelty in telling Mrs. Capato that her children are not entitled to the same benefits as other children whose parents were both around for conception and birth; hasn’t she lost enough already? And should her children be punished for her reproductive choices?

The Court may or may not give much consideration to these policy questions, but the question remains a fascinating one without an obvious answer.

2 Responses to “The Supreme Court Meets Frozen Sperm”

  1. hgreely says:

    This post started as a Center for Law and the Biosciences journal club that Amy Burns moderated on November 29. It was interesting just how unsure the journal club participants were about the “right” policy answer. As new reproductive technologies proliferate, these issues of posthumous and (or) “unintended” children will only get harder. It’s certainly not clear to me what we should do.

    I do tend to side with the children in this case, but that may be because of the evidence that the genetic father (and the mother’s then-husband) intended to have more children . . . though he didn’t try to provide for them in his will.

    On a strictly legal perspective, I am vastly ignorant about how survivor benefits work. But, based on the little I think I know, I am uncomfortable with how the 3rd and 9th circuits reached that conclusion, saying “child” is “child” and, implicitly, “child” is “genetic child.” Surely when an anonymous sperm donor dies, all the dependent children conceived using his sperm are not entitled to Social Security survivor benefits? Or when a first husband dies, whose genetic children were adopted by a second husband, dependent children don’t get survivor benefits. Presumably, there is some thought that the dependent children were dependent (legally) on the dead parent. Of course, “old-fashioned” posthumous children (those conceived before a father’s death but born after it – now, thanks to “life” support, also sort of possible for mothers) were never actually “dependent” on their dead father. Maybe intent to be a parent can sneak in here – the intent to have a dependent child?
    And, of course, where to “conceived but frozen” “children” figure into all this? It makes my head hurt . . . but I bet, along with Amy, that the Supreme Court ignores all the interesting questions.

  2. Gabriel Sulem says:

    I have looked around a little bit and I would just like to complete about what would be the answer in France.
    Concerning the case of a woman who would like a baby of her dead husband, she will not be authorized to an artificial insemination in France. It is forbidden to use dead people sperm for that.
    However if the sperm is kept abroad, it is likely that she would be able in some places to use it.
    9 months later: if she decide to give birth in France, and the birth occur less than 300 days before her husband’s death, there is paternity presumption, and I think there will be little investigation to prove the contrary. The child will be an orphan.
    If it is later, then she is not obliged to give a name as “father” so it will be a mono-parental family. It is very unlikely that she will manage to have the child consider as orphan.
    If the child birth occur abroad. Then depending of the countries I suppose there might be some places where the father’s name will be put as “father” independently of his life status.
    Then come the conversion in French administrative civil register.
    So I suppose that if there is no suspicion, it is possible to stay discrete and have no questions.
    Now if we consider the recent high court jurisprudence about Menesson couple. They had a child born by a surrogate mother in California. After 10 years of judicial battle, it was confirmed that the filiation is valid. Mr Menesson is the father, Mrs Menesson the mother, as stated by California birth acts. But since the birth method is illegal in France, the child cannot be inscribed on the French civil register, so is not French. It is a bit a strange situation, because there will be no problem theoretically since as son of a French, he is French, however he will have each time difficulties to show it. So it is just going to lengthen all his procedures.
    According to that, I think that the decision in our case would be that the child will be considered as child of the mother (since the definition of mother is the one who give birth), but not child of his father. So most probably he will be French, but will not be eligible for any orphan help.
    But there was no such case already, and all these regulation are on the way to change. On which time scale? I have no cue.

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