Symposium: the legal and ethical implications of posthumous reproduction.

AuthorStechschulte, Trent
  1. INTRODUCTION II. POSTHUMOUS REPRODUCTION III. TITLE II OF THE SOCIAL SECURITY ACT IV. ASTRUE V. CAPATO V. OVERVIEW OF THE ARTICLES IN THIS SYMPOSIUM A. Professor Jessica Knouse B. Professor Hilary Young C. Professor Maya Sabatello I. INTRODUCTION

    On March 22, 2013, the Journal of Law and Health of Cleveland-Marshall College of Law hosted a symposium entitled the "Legal and Ethical Implications of Posthumous Reproduction" in response to the United States Supreme Court case Astrue v Capato. In Astrue, Karen Capato used Robert Capato's sperm to successfully conceive twins by in vitro fertilization eighteen months after Robert Capato's death. (1) Karen then applied for Social Security Survivorship Benefits on behalf of the twins, but to her dismay the Social Security Administration denied her application, prompting litigation on the twins' behalf. (2)

    Ms. Capato appealed her case to a federal district court where the court was asked to resolve whether her posthumously conceived children were eligible for Social Security Survivorship Benefits under Title II of the Social Security Act. Ms. Capato argued that the twins were eligible because they were the biological children of Robert Capato. (3) The Social Security Administration disagreed with Ms. Capato, arguing that the twins claim should be denied because they were ineligible under Florida's intestacy law. (4) Florida's intestacy law denies such benefits to posthumously conceived children and, therefore, the administration concluded, the twins were ineligible for the benefits. (5)

    The Supreme Court held that the Social Security Administration's reading of Title II of the Social Security Act deserved deference regarding inheritance rights of posthumously conceived children. (6) Writing for the unanimous Court, Justice Ginsberg noted that the lower court's interpretation of "child" was correct and served the core purpose of the Act, which was to provide benefits for dependents of wage earners after their death. (7)

  2. POSTHUMOUS REPRODUCTION

    Posthumous reproduction is the possibility of conceiving a child after the sperm or egg donor dies. One of the more important interests considered when debates concerning posthumous reproduction occur is an individual's right to reproduce and build a family. In 1942, Justice William Douglas stated that the right to procreate is one the most basic civil rights of man when the Supreme Court struck down Oklahoma's plan to sterilize criminals in the state. (8) With the advent of new reproductive technologies--such as surrogacy, artificial insemination, and other forms of assisted technology--individuals now have the ability to procreate in ways not available in 1942 when Justice Douglas wrote the Skinner opinion.

    The ability to conceive a child even after the death of the child's biological parent is a significant scientific achievement, but has complicated regulations that did not consider such technological advancements in reproductive capabilities. Intrauterine reproduction, or artificial insemination as it is commonly called, has been successfully used to conceive children since 1866. (9) However, only recently has technology developed a method in which gametes can be successfully preserved for long periods of time and used to conceive a child--long after the biological parent has been dead. (10) Such scientific capabilities in posthumous reproduction have caused courts to rethink traditional notions of parenthood and inheritance. (11)

    The way in which inheritance rights are provided for posthumously born children is an ongoing debate in America, as many states deal with children born from the procedure differently. (12) The question of whether posthumously born children are eligible for the benefits provided under the Social Security Act has been one of the most recent issues debated. Most states simply assume that someone cannot be the father of a child nine months after the death of that person. (13) In Astrue, the Supreme Court was asked to determine whether a pair of twins born a year after their father's death were eligible for Social Security benefits when those benefits were traditionally only afforded to dependents. Arguably, the twins were not dependent on their father because he died before they were even conceived.

  3. TITLE II OF THE SOCIAL SECURITY ACT

    The Social Security Act was amended in 1939 to provide monthly benefit payments to surviving family members of deceased wage earners. (14) The purpose behind the act was to provide economic protections for dependent family members in the event an insured wage earner in the family would die. Providing benefits to surviving children of a deceased wage earner is one of the many categories of benefits offered. For children to be eligible for benefits under the section entitled "Child's Insurance Benefits," the applicant must be a "child" of the wage earner. The threshold determination of an applicant to receive benefits is that the child must be unmarried, below a specific age limit (which is usually 18 or 19), and dependent on the insured at the time of the insured's death. (15)

    The task the Supreme Court had in Astrue was to determine whether the Capato twins were considered children of Robert Capato under the Act in order to receive the benefits. Section 402(d) of the...

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