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Should IVF children in the US conceived after a parent's death receive benefits?

21 November 2011
Appeared in BioNews 634

The US Supreme Court will decide whether children conceived through IVF after the death of their biological father are entitled to receive survivor benefits - general welfare benefits designed to replace the lost support of a deceased wage earner.

The case involves the biological twins of Mr Capato, who were born by IVF 18 months after he died of esophageal cancer. His widow, Ms Capato, who conceived the children using her late husband's frozen sperm, is seeking the twins' entitlement to survivor benefits under US social security laws.

The Social Security Administration had originally denied Ms Capato's claim on the grounds that eligibility for benefits depended partly on whether the child could inherit from the biological father's will. As the twins were not named in Mr Capato's will, it followed that they did not qualify for the benefits.

The Supreme Court will hear an appeal by the US Government of a ruling by a US appeals court which held that a posthumously conceived child did fall within Philadelphia's legal definition of a child  for the purpose of receiving survivor benefits.

The crux of the case will centre on the status of the posthumously conceived children and whether, even though they cannot inherit personal property from their biological father under applicable state intestacy law, they are eligible for child survivor benefits.

The case is further complicated by the fact that advancements in reproductive technologies were not in the imagination or contemplation of Congress when the 1935 law came to be. So the Court will have to consider what is required to qualify for child survivor benefits under the Act, in light of the developments in new reproductive technologies.

As the Court of Appeals in a similar case put it: 'Developing reproductive technology has outpaced federal and state laws, which currently do not address directly the legal issues created by posthumous conception'.

The ruling, which is not expected until June next year, may have an impact on the more than 100 applications received by the Social Security Administration for survivor benefits on behalf of posthumously conceived children. A number which, lawyers for the appellants argued, has increased significantly in recent years.

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