XI. Unborn Children Are Treated As Persons Eligible for Federal Entitlements.

When a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter sessions to dispute and try the fact. (394)

--William Blackstone

Consonant with the foregoing recognitions under the law of unborn children's personhood, Congress has granted unborn children equal protection rights to Social Security Child's Survivor Insurance benefits (395) if they meet relationship and dependency requirements under the Social Security Act. (396) As Judge Posner recounted in Bennemon ex rel. Williams v. Sullivan (397):

In 1965 ... Congress had broadened the rights (theretofore slight) of illegitimate children under the social security statute, creating the legal structure that we apply today.... [I]f the child is illegitimate, he must squeeze himself into one of a limited set of niches, and if he can't, then he gets no benefits even if there is little doubt that the deceased wage earner was the child's biological father, which is the case here. The niches are: eligibility to inherit under the law of the pertinent state (in effect deferring to state policy on the rights of illegitimate); a written acknowledgment of parenthood by the deceased wage earner or a judicial determination to that effect; or a determination by the Social Security Administration that the deceased was the parent and, at the time of his death, was either living with the child or "contributing to the child's support." (398) Posner explained that although the minimum level of support to qualify for benefits varied among the federal circuits, (399) the test was always based on the level of support at the time of the father's death. The Social Security Administration explained its policy in a Senate Report by stating that the program was "intended to pay benefits to replace the support lost by a child when his father" died. (400)

Yet, no federal court of appeals held unborn illegitimate children not to be "persons" under the Social Security Act prior to Weber. (401) Four years before Roe, in Wagner v. Finch, (402) the Northern District court of Texas granted the Secretary of Health, Education and Welfare's motion for summary judgment contending that the claimant posthumous illegitimate child, Donna, was not the "child" of the "insured individual...