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Supreme Court Rules No Survivor Benefits for Frozen Sperm Twins

(This is a guest post by Stanford 3L Amy Burns.)

Yesterday, the Supreme Court ruled, in a unanimous opinion by Justice Ginsburg, that children conceived after the death of their father are not eligible for social security survivor benefits. Or more precisely, that they are not automatically eligible. (A state could make them so.) The case is Astrue v. Capato (Karen Capato being the mother of the posthumously conceived twins seeking benefits in this case).

This comes as no great surprise, after the argument in March at which no Justice seemed particularly interested in delving into the possibilities concerning reproductive technology and how our benefits structure might change with the times.

It would have been enough for the Court to say that the statute is ambiguous and the Social Security Administration’s interpretation reasonable, thus garnering Chevron deference. (And indeed, they did say this.)

That would have generated probably the most boring opinion one could imagine. So instead, we get a point-by-point takedown of Ms. Capato’s argument that her twins should get benefits. But alas for the 99.9% of readers who are not statutory interpretation nerds, the analysis is almost entirely based on the language and structure of the statute. (Think “when does ‘child’ mean ‘child’ and when does it mean some specific kind of ‘child’?”)

Lest the opinion remain unbearably dry, we did actually manage to get Justice Ginsburg to say “semen” and “insemination” – in her discussion of whether biological parentage should automatically count as parentage. (She pointed out some state laws where the husband of a woman who uses a sperm donor will be deemed the father, and the donor will not be.)

The legal bottom line, then, is that the children have to be able to inherit under state intestacy law to get survivor benefits (unless they fit in one of the very narrow statutory exceptions). The third sentence of the opinion gives us a glimpse into the Court’s attitude toward these things more generally: “The technology that made the twins’ conception and birth possible, it is safe to say, was not contemplated by Congress when the relevant provisions of the Social Security Act originated (1939) or were amended to read as they do now (1965).”

Apparently, the Court does not think it’s in its job description to read older laws to accommodate new technologies—at least in the area of reproduction.

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