Liberty, equality, and parentage in the era of posthumous conception.

• Author: Knouse, Jessica
• Position: Legal and Ethical Implications of Posthumous Reproduction

1. INTRODUCTION II. UNDERSTANDING POSTHUMOUS CONCEPTION A. Posthumous Conception and Legal Parentage B. Astrue v. Capato III. IMPLICATIONS OF POSTHUMOUS CONCEPTION A. Liberty Rights of Prospective Posthumous Conceivers B. Equality Rights of Posthumously Conceived Children IV. DIMINISHING THE LAW'S FOCUS ON PARENTAGE A. From Parents and Children to Providers and Dependents B. Allocating Benefits in a Less Parent-Focused Regime V. CONCLUSION I. INTRODUCTION

   Liberty and equality have always had a complex interrelationship. Liberty protects individual choice, while equality protects individuals from discrimination based on statuses about which they have no choice. Examining liberty and equality in the context of parent-child relationships adds an additional layer of complexity. When a woman exercises her liberty to procreate by using her deceased husband's genetic material, her children may experience inequality due to their status as posthumously conceived. (1) such children are, in some states, denied social security survivors benefits because their deceased genetic parent is not viewed as their legal parent. (2) This was the case with Karen Capato's twins, who were conceived using her deceased husband's sperm and subsequently denied the survivors benefits that their older (non-posthumously conceived) brother was able to receive because their genetic father was not viewed as their legal parent. (3) When Karen Capato's case reached the Supreme Court in 2012, her equal protection arguments were rejected and survivors benefits were withheld on the basis that the twins were not Robert Capato's "children." (4)

   This essay uses Astrue v. Capato as a platform to examine how liberty and equality interact within parent-child relationships. It observes that as prospective parents have experienced an increase in liberty due to new reproductive technologies the children they create have not necessarily experienced a commensurate increase in equality. The law's myopic focus on parent-child relationships rather than provider-dependent relationships renders posthumously conceived children unequal along multiple dimensions. They may have not only one provider, but also only one parent. (5) This essay argues that shifting the law's focus away from identifying parents and towards identifying providers would mitigate the status inequality that posthumously conceived children currently experience without (necessarily) altering the allocation of benefits. The Capato case would have had a very different legacy if, instead of determining whether the twins were Robert Capato's "children," (6) the Social Security Administration had simply determined whether they were his "dependents." This proposal fits with recent challenges to traditional notions of parentage. (7)

   Part II provides background information. It describes the current law with respect to the parentage of posthumously conceived children and offers a detailed account of Astrue v. Capato. (8) Part III considers the liberty and equality implications of posthumous conception. It addresses the doctrinal as well as practical aspects of liberty and equality and observes that, while prospective parents have substantial liberty to elect posthumous conception, the children they create may experience inequality associated with their status as posthumously conceived--in part, because they may have only one legal parent. Part IV suggests a diminution in the law's focus on parentage. It argues that the law should focus less on parent-child relationships and more on provider-dependent relationships by, for example, eliminating the use of parental status as a proxy for provider status under the Social Security Act. Part V concludes that this shift in focus from parental status to provider status would protect the liberty of adults, promote the equality of children, and perhaps achieve a more just distribution of governmental benefits.

2. UNDERSTANDING POSTHUMOUS CONCEPTION

   Part II describes the current law with respect to the parentage of posthumously conceived children. It focuses on whether a deceased gamete-provider can be viewed as a legal parent. Part II(a) offers a brief overview of existing state statutes, and Part II(b) provides a detailed account of Astrue v. Capato.

   1. Posthumous Conception and Legal Parentage

      Posthumous conception can occur through at least two mechanisms. It can be accomplished using genetic material--a sperm, an egg, or an embryo--that was cryopreserved during an individual's lifetime to allow for the possibility of future parenthood, (9) or it can be accomplished using genetic material that was harvested after an individual's death at the request of a survivor. (10) The former mechanism is the more common at present, (11) and one can imagine a variety of reasons that a living individual might elect to cryopreserve his or her genetic material, including concerns about infertility resulting from medical treatment (e.g., chemotherapy), exposure to toxins or other dangers (e.g., in the course of combat), or normal aging processes. (12)

      One of the primary legal issues arising from posthumous conception is parentage, yet at present less than one-third of the states have statutes addressing whether deceased gamete-providers should be viewed as the parents of posthumously conceived children. (13) Many of the states that do have statutes have embraced policies similar to Section 707 of the Uniform Parentage Act, (14) which provides:

      If an individual who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm, or embryos, the deceased individual is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child. (15) Under such statutes, whether a deceased gamete-provider will be viewed as a parent depends upon whether he or she specifically consented to be the parent of a child who was conceived and born after his or her death.

      Some state statutes, rather than speaking directly to parentage, speak to inheritance rights--i.e., to whether a child can inherit from a gamete-provider whose death preceded his or her conception. In Florida, for example, where the Capato case occurred, a posthumously conceived child is statutorily barred from inheriting from a deceased gamete-provider unless he or she was expressly provided for by will. (16) Florida's intestacy statute provides, in relevant part, "[a] child conceived from the ... sperm of a person ... who died before the transfer of their ... sperm ... to a woman's body shall not be eligible for a claim against the decedent's estate unless the child has been provided for by the decedent's will." (17) While this language does not speak directly to parentage, it influences parentage when read in conjunction with the Social Security Act. As Part II(b) will explain, since the Social Security Administration looks to state intestacy law to determine whether an applicant for survivors benefits is the "child" of a deceased insured wage earner, state intestacy statutes effectively determine parentage. The fact that so few states have statutes addressing the parentage of posthumously conceived children has left governmental entities with little guidance. This essay, acknowledging the lack of legislative guidance, asks whether and to what extent governmental entities ought to be using parent-child relationships as proxies for provider-dependent relationships.

   2. Astrue v. Capato

      This subsection describes the facts and analysis of Astrue v. Capato in order to illustrate how an adult's exercise of procreative liberty--i.e., the decision to engage in posthumous conception--could cause the resulting children to experience inequality. Karen Capato's posthumously conceived twins experienced inequality, in part, because they had only one legal parent, while their non-posthumously conceived genetic sibling had two legal parents. (18) It should be noted at the outset that this subsection merely describes the Court's reasoning, while Part III(b) provides a more in-depth analysis of the equal protection issues raised by posthumous conception.

      Shortly after Karen and Robert Capato were married, Robert was diagnosed with esophageal cancer. (19) Because he was advised that the treatment (chemotherapy) might render him sterile, Robert had some of his sperm frozen and banked. (20) The Capatos, however, conceived naturally and had a son whom they hoped would one day have a sibling. (21) Robert's will provided for his and Karen's son as well as for two children from a prior marriage. (22) Although Robert and Karen told their attorney that they wanted any future children to be treated the same as any existing children, Robert's will did not make any provision for future children. (23) When Robert's and Karen's son was about seven months old, Robert passed away. (24) Robert's banked sperm, however, remained viable and was used by Karen to conceive twins who were born eighteen months after Robert's death. (25)

      When Karen applied for Social Security survivor's benefits for the twins the Social Security Administration ("SSA") denied her application on the basis that the twins were not Robert's "children." (26) The Social Security Act, which generally speaking is designed to provide "dependent members of [a wage earner's] family with protection against ... the loss of [the insured's] earnings," (27) defines the term "child" in two relevant sections. (28) Section 416(e), which provided the basis for Karen's argument, states, "'[C]hild means (1) the child or legally adopted child of an individual[.]" (29) Section 416(h)(2)(A), which provided the basis for the SSA's argument, states, "In determining whether an applicant is the child ... of [an] insured wage earner[,] the Commissioner of Social Security shall apply [the intestacy law of the insured individual's domiciliary...