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Posthumous Conception: The Court Doesn’t Bite

(This post is by guest blogger Amy Burns, a 3L at Stanford Law School.)

On Monday, the Supreme Court heard argument in Astrue v. Capato, the case about whether children conceived after the death of their father are eligible for social security survivor benefits. The details of the dispute are explained in my previous post on the subject. In short, the government thinks that “child” is defined only with reference to state intestacy law; the Capatos argue that “child” means what Congress would have thought it meant when it wrote the provision in the 1930s – that is, the undisputed child of a legitimate marriage, and that state intestacy law is only relevant in that it tells us what to do if we have a “child” who does not fit this standard mold. Since the Capatos were married, and the twins are definitely their biological children, there’s no need to consider whether a state would let them inherit or not.

The thing that strikes me the most about the argument was that there was very little discussion of reproductive technology. The Justices batted back and forth different comparable provisions of statutes concerning the definitions of grandchildren and husbands and wives, debated whether the statute would be unnecessarily redundant under this or that interpretation, and even discussed whether it would be constitutional to presume that children of a marriage are children without doing so for children born out of wedlock. They talked quite a bit about marriage, and its role in establishing legal parentage. But they said almost nothing about IVF or other forms of ART.

Why? It seemed largely driven by the lawyers; Eric Miller, for the government, made a single reference to sperm donation, and Charles Rothfeld, the lawyer for the Capatos, kept bringing it back to 1939, when, obviously, there was no ART. (An odd strategy, perhaps, for someone who is trying to argue that Congress must have intended to include people who were conceived via IVF after the father had died.) But I also wonder if the Justices were just ignorant of, or even uncomfortable with, the possibilities, so steered clear of them. It could have been a much livelier discussion than it was, with more creative thinking about the sorts of situations we might see in the future, instead of dwelling on the kinds of questions we could have been seeing all along – deaths, and marriages, and divorces, and infidelities – but not anonymous sperm and egg donors, surrogacy, or the even wilder future – engineered sperm or eggs.

Still, there were (as usual) a few interesting hypotheticals. Both Justice Sotomayor and Chief Justice Roberts wondered what would happen if someone in Mrs. Capato’s position were to remarry and then conceive with her previous husband’s sperm; would her twins be eligible, then, as both the children of her first husband, whose sperm was used, and the children of her second husband? The Capato’s lawyer suggested that they might be. (Yikes.) Justice Ginsburg also wondered if there might be a time limit on use of a dead man’s sperm, for these purposes, since there is a natural time limit on how long after a father’s death children could be born the old fashioned way.

On the whole, the Justices seemed extremely skeptical of the Capatos’ position that there is a category of sort of “prototypical” children (of a marriage, presumably), for whom state intestacy law is irrelevant, though they didn’t discuss whether, even if there is such a category, posthumously conceived children could be in it. This seems like the obvious question for them to ask, yet they dodged it entirely, which to me suggests a lack of interest in the idea of such a category at all.

I will be very surprised if the twins are allowed to get their benefits. Justice Breyer, often quite talkative, didn’t say a word until near the end of Mr. Rothfeld’s argument for the Capatos, where he jumped in with a plain-text reading of the statute in the government’s favor, which he seemed very committed to. Justice Kagan, too, seemed pretty sure of the text. Justice Scalia expressed frustration more than once at the notion that one could be a “survivor” if born after the parent’s death. And Justice Ginsburg seemed to think Mr. Rothfeld’s formulation involving a presumption in the case of marriage might be unconstitutional. And some of the most interesting nooks and crannies of all this never got their day in Court.

Amy Burns

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