CBJ - April 2012 #03. Is There Life After Death? The Rise of the High-Tech Family.

Author:By Judith Daar

California Bar Journal


CBJ - April 2012 #03.

Is There Life After Death? The Rise of the High-Tech Family

The California LawyerApril 2012Is There Life After Death? The Rise of the High-Tech FamilyBy Judith DaarBirth after the death of a biologic parent has long been regarded as a life-cycle enigma, blending equal parts tragedy and joy. Historically, postmortem deliveries were reserved for women whose husbands or partners died during the pregnancy, leaving no mystery as to the child's legal status. A child born within a period of gestation after the biologic parent's death was considered the decedent's child for all intents and purposes. But what about a child born long after a parent's death, say, decades later? The modern miracle of assisted reproductive technologies (ART) makes this clinical scenario entirely possible, and is prompting us to rethink the definition of family in its wake.

The Supreme Court Steps In

This term, the United States Supreme Court will enter this high-tech family fray, pondering the existence of life after death. Though sounding in existential inquiry, the question is more practical than paranormal, plumbing the eligibility of posthumously conceived children to receive Social Security insurance benefits as dependents of their predeceased genetic parent. The financial life of these children, some 100 of whom have applied for support to date, hangs in the balance. As science triumphs in extending the viability of frozen sperm, eggs and embryos long after a progenitor's death, the law struggles to accommodate newly emerging family structures. For the first time in its history, the high court will consider the status of children born through ART.

The case at issue, Astrue v. Capato (fn1), presents a fact scenario that has become a template for postmortem benefit claims: the life of a young married couple is torn asunder when the husband is diagnosed with a fatal disease. Such was the fate of Robert Capato, diagnosed with esophageal cancer shortly after his wedding in 1999. Prior to undergoing chemotherapy that was predicted to render him sterile, Robert deposited several vials of semen at a local Florida sperm bank. After his death in 2002, Robert's widow used the sperm in a successful in vitro fertilization cycle, giving birth to twins eighteen months after the demise of their biological father. A month after the twins were born, Robert's widow applied to the Social Security Administration (SSA) for surviving child's insurance benefits based on her deceased husband's earnings record.

The SSA denied the twins' benefits, reasoning the posthumously conceived pair failed to qualify as "children" under the Social Security Act. Mrs. Capato sought a hearing before an administrative law judge who, while noting the widow presented a "very sympathetic case," affirmed the SSA finding. Upon appeal to the District Court, the twins fared no better. All three decision makers relied on a provision of the Social Security Act that defers to state intestacy law to define a parent-child relationship. (fn2) Since Florida, where the Capatos were domiciled, would not recognize the children as heirs of their father, the SSA was bound to deny the requested benefits. (fn3).

Mrs. Capato appealed to the 3rd Circuit which reversed the lower court, finding that the twins were the "undisputed biological children" of the deceased wage earner and thus entitled to SSA benefits. The appellate court relied on a different provision of the Act, section 416(e), to define "child" for purposes of the twins' eligibility. Section 416(e) defines "child" broadly to include "the child or legally adopted...

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