Challenges and inconsistencies facing the posthumously conceived child.

• Author: Peebles, Andrew T.

Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021 (2012)

1. INTRODUCTION

   The use of artificial reproductive technology (ART) has increased sharply in recent decades (1) as families plan ahead in the face of such difficulties as disease and military service that raise doubts as to whether reproduction will be possible for an individual in the future. Posthumous conception of children is a widely used form of ART, and it allows families to expand, even after the death of one of the parents. (2) In vitro fertilization is the newest form of this technology. (3) But for the posthumously conceived child, the difficulties continue as most states bar these children from inheriting Social Security survivor's benefits from a deceased parent. (4) The Supreme Court of the United States case of Astrue v. Capato ex rel. B.N.C. has recently given authority to this inequality, holding that posthumously conceived children are eligible for such benefits if they qualify as a "child" under state intestacy law. (5) However, the Court's decision in this case has left several problems unresolved that will continue to plague courts in the future and will lead to further inconsistent decisions and disparities for children born through in vitro fertilization. Due to the rise in the use of this innovative technology, these issues affect an increasing portion of the population.

   This Note will discuss the problems with the Supreme Court of the United States' decision, the inconsistencies that exist in state intestacy law, and the solutions that are necessary to remedy these challenges. Part II gives a brief background of the facts and circumstances surrounding Astrue. Part III discusses the history of the Social Security Administration and in vitro fertilization and points out the conflicting results from various jurisdictions that have dealt with this issue. Part IV delves into the Supreme Court's reasoning behind its decision in Astrue. Finally, Part V comments on the reasons Astrue was poorly decided, the difficulties that will result from the decision, and the methods to resolve these complications.

2. FACTS AND HOLDING

   Karen Capato married Robert Capato in May 1999. (6) Robert was diagnosed with esophageal cancer soon after the marriage and was told that the chemotherapy treatment he required could possibly render him sterile. (7) Because the Capatos wanted children, Robert had his semen deposited and frozen at a sperm bank before undergoing chemotherapy. (8) Despite Robert's treatment, Karen conceived naturally and gave birth to a son in August 2001. (9) Robert's health declined in 2001 and he died in Florida, where he and Karen then resided, in 2002. (10) In his will, which was executed in Florida, he named as beneficiaries the son born of his marriage to Karen and two children from a previous marriage. (11) "The will made no provision for children conceived after Robert's death. (12) Following the death of her husband, Karen began in vitro fertilization using Robert's frozen sperm. (13) In September 2003, eighteen months after Robert's death, she gave birth to twins.

   Karen claimed survivor's insurance benefits on behalf of the twins but the Social Security Administration (SSA) denied her application. (14) The United States District Court for the District of New Jersey affirmed the agency's decision, determining "that the twins would qualify for benefits only if, as [section] 416(h)(2)(A) [of the Social Security Act (the Act)] specifies, they could inherit from the deceased wage earner under state intestacy law." (15) Capato was domiciled in Florida at the time of his death, and under Florida's law, "a child born posthumously may inherit through intestate succession only if conceived during the decedent's lifetime." (16)

   The U.S. Court of Appeals for the Third Circuit reversed the district court's decision. (17) The court concluded that under section 416(e) of the Act "'the undisputed biological children of a deceased wage earner and his wid- ow' qualify for survivor's benefits without regard to state intestacy law." (18) The court further held that section 416(h), which the SSA had relied upon, comes into play only when a claimant's status as the child of a deceased wage earner is in doubt. (19) Because the courts of appeals had split on the statutory interpretation question this case presented, the Supreme Court of the United States granted a writ of certiorari." (20)

   The Supreme Court, in an opinion by Justice Ginsburg, examined the relationship between the Act's provisions to decide if the Capato twins were eligible for benefits under the Act's definition of "children." (21) The Court held that section 416(e)'s definition of "child," the section relied upon by Karen Capato, was a "definition of scant utility without aid from neighboring provisions." (22) The Court found assistance in the definitions of section 416(h)(2)(A), relied upon by the SSA, which completed the definition of "child" for purposes of the entirety of Subchapter 11 of the Act, which included section 416(e). (23) Section 416(h)(2)(A) requires that all child applicants qualify under state intestacy law in order to receive benefits, ensuring that benefits are given to those clearly within the legislature's contemplation. (24) The Court believed this reading of the Act's provisions was more adapted to its design to benefit primarily those supported by the deceased [breadwinner during] his or her lifetime. (25) Thus, under the SSA's interpretation of the relevant provisions of the Act, the Court held that a posthumously conceived child applicant must look to state law to determine if they are entitled to insurance benefits as a "child" of a deceased wage earner. (26)

3. LEGAL BACKGROUND

   1. History of the SSA and In Vitro Fertilization

      Congress enacted the Social Security Act in 1935, providing old age pensions, unemployment compensation, and aid to dependent children. (27) The Act was primarily introduced to combat the problems of economic security in a wage-based economy, especially during the Depression of the 1930s. (28) Title II of the Act provided retirement and disability benefits to insured wage earners, also known as "social security." (29) An important feature of social security was that it provided a financial safety net and protection for workers from birth until death. (30)

      Congress amended Title II in 1939 to offer benefits to the surviving family members of a deceased wage earner, including minor children, who relied on the wage earner during their lifetime. (31) This amendment created "a fundamental change in the Social Security program[,]" altering Social Security "from a retirement program for workers [only] into a family-based economic security program." (32) As the Supreme Court noted in Califano v. Jobst, the amended statute was now "designed to provide the wage earner and the dependent members of his family with protection against the hardship occasioned by his loss of earnings; it is not simply a welfare program generally benefiting needy persons." (33) Thus, children of deceased wage earners were entitled to survivorship benefits under the amended Act and received those benefits through the probate process of intestate succession.

      The Model Probate Code (MPC) became the first uniform probate act in 1946 when it was created by the Probate Law Division of the American Bar Association (ABA). (34) The MPC contained a provision dealing with "after-born heirs... which codified the traditional [common law] rule that all heirs must be living or in gestation at the moment of the decedent's death" to take from his estate through intestate succession. (35) Then, in 1969, the ABA created the Uniform Probate Code (UPC) to replace the MPC, incorporating the MPC's "after-born heirs" provision. (36) Despite some insignificant stylistic changes to the wording of the statute, the drafters maintained the requirement that a child be born or in gestation at the time of the decedent's death in order to be treated as an heir to the estate. (37) The concepts of child inheritance outlined in these codes "had existed unchanged for over [one] thousand years" and up to this time had not encountered any reason to change in any significant way. (38) Thus, under both the MPC and original UPC, posthumously conceived children, a concept unknown and undiscovered at the time, would not have been eligible to inherit from the estate.

      In recent decades, the number of posthumous conceptions in the United States has increased sharply, indicative of a trend seen around the world. (39) The term "artificial reproductive technology" encapsulates several procedures, including artificial insemination, surrogacy arrangements, cryopreservation, and in vitro fertilization. (40) But it is this latter form of conception that has become the subject of a large amount of litigation, and the subject of this Note. In vitro fertilization involves the stimulation of multiple egg production by providing medicine to a woman, removing those eggs, combining them with sperm and fertilizing them in a laboratory for two to three days, and finally relocating one or more embryos to a woman's uterus. (41) Remarkably, researchers estimate that nearly 10,000 children are born through in vitro fertilization procedures each year. (42) This practice is expected to continue well into the future for a number of reasons, including increasing success rates for the process, a decreasing stigma associated with the practice, and increasing rates of infertility due to couples waiting longer to procreate. (43) Additionally, couples like the Capatos may not have any other choice but to pursue ART when debilitating disease or death are looming possibilities.

   2. Conflicting Decisions on a Novel Issue

      Many novel legal issues and questions have arisen as a result of this new reproductive technology. (44) Does a child conceived after a parent's death have the right to inherit from that parent? (45) If so, is there a...