Supreme Court hearing case on children born after death via Assisted Reproductive Technology.

On March 19th, 2012, the US Supreme Court began hearing arguments on whether a child who was conceived via in vitro fertilization after the death of his biological father can receive Social Security benefits as his father’s surviving child (Astrue v. Capato). This issue is increasingly relevant as the Social Security Administration is dealing with cases such as this and other complicated issues due to advanced technology in Reproductive practices.

In this particular case, Robert Capato deposited semen for storage at a local Sperm Bank in 1999 when he was diagnosed with cancer. Mr. Capato died in 2002. In 2003, his wife, Karen, used his sperm to become pregnant and give birth to twins. At the time of his death, Mr. Capato only named his three existing children as his beneficiaries in his will.

Mr. Capato resided in Florida when he died, so when Karen Capato applied for Social Security benefits in Florida she was denied due to Florida’s intestacy law. Florida law allows a postmortem child to inherit only if provided for in the decedent’s will, the court held that the twins were not eligible for child’s insurance benefits. In part, the legal issue hinges on the Social Security Administration’s definition of “child”, which a federal appeals court agreed that the Capatos did meet the definition as they are biologically Mr. Capato’s. However, the Social Security Administration’s position was that the issue should be decided by the wage-earner’s home state and whether that state would let a posthumously conceived child inherit property in the absence of a will. In the Capato’s case, the agency concluded that since Mr. Capato was a resident of Florida and it is a state that wouldn’t permit such an inheritance, the denial of benefits was upheld.

It is impossible to decipher the intent of Mr. Capato, but it seems clear that he had intended for children (or at least the possibility of children) after his death given that he had stored his semen at a Sperm Bank. Also, what if Karen Capato had been pregnant at the time of Mr. Capato’s death? The child would have been born after his death. Would that child have been denied Social Security benefits? Is there discrimination against children conceived via Assisted Reproductive Technology versus naturally?

This case brings up very important legal questions that the Social Security Administration will be forced to recognize and resolve in the very near future. Assisted Reproductive Technology has brought forth issues that haven’t existed before. Hopefully, the court can make precedential decisions to address these issues. Ultimately it comes down to the best interest of the children and hopefully that is reflected in the rulings that are handed down.