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Should babies conceived after dad's death get benefits?

26 March 2012
Appeared in BioNews 650

Last week, the US Supreme Court were still wrestling with the application of a 1930s law to the case of the twins born by IVF, 18 months after their father died of cancer.

Mrs Karen Capato, who used her late husband's frozen sperm to conceive the children, is seeking the twins' entitlement to survivor benefits under US social security laws, as reported on in BioNews 634.

Her application to receive the benefits was rejected by the Social Security Administration which said that for the twins to qualify, Mr Robert Capato needed to be alive during their conception.

However, as Justice Samuel Alito Junior highlighted in court, the survivor benefits law was written at a time when people 'never had any inkling about the situation that has arisen in this case'.

While Justice Stephen Breyer said Mrs Capato's lawyers wanted them to apply an 'old law to new technology', Justice Antonin Scalia said that what was at issue 'is not whether children that have been born through artificial insemination get benefits. It's whether children who are born after the father's death gets benefits'.

In Florida, children conceived posthumously are only covered by inheritance laws if they are named in the will. Mr Capato's will only names his wife, their son and his two children from a previous marriage.

Furthermore, it has been argued that as one provision of the Social Security Act states that a surviving child is one who is 'dependent on the deceased wage earner at the time of [his] death', the twins could not be considered dependents.

A federal judge's decision, which was in agreement with the Social Security Administration, was overturned by the third US Circuit Court of Appeals in Philadelphia, saying that as the twins were clearly his biological children they deserved survivor benefits.

The fact that other federal appellate courts have ruled differently in similar cases, means the Supreme Court have to come to a final conclusion on the situation, which Justice Elena Kagan described as 'a mess'.

Justice Ruth Bader Ginsburg said that in the case of adoption, the child must have completed the adoption process in order for them to receive survivor's benefits if one of the parents was to die.

Moreover, Chief Justice John Roberts noted that ruling for the Capato twins could have further repercussions for social security benefits, asking: 'What if the Capato twins were born four years after the death in this case?'

The ruling is expected in the summer.

Complications beset ‘posthumous conception’ case
Washington Post |  19 March 2012
Court: Benefits for babies born after dad's death?
Associated Press |  19 March 2012
Death benefits for children produced by in vitro fertilization?
LA Times |  19 March 2012
Mom seeks benefits for test-tube babies conceived 18-months AFTER father died
Daily Mail |  20 March 2012
Who Is a Child? The Supreme Court Decides
Time |  20 March 2012
17 June 2013 - by Hila Rimon-Greenspan and Vardit Ravitsky 
The permissive approach of the Israeli courts to allow posthumous conception is ethically justified and even commendable. By choosing 'a sperm with a past', a woman guarantees her prospective child a known genetic origin, as well as an opportunity to benefit from the love and the support of grandparents and an extended family...
12 November 2012 - by Ayesha Ahmad 
A recent battle by the parents of a teenager who was critically injured in a car accident to obtain and store his sperm for future use has ended following his death last week...
21 November 2011 - by Rachel Lloyd 
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 paid by the state designed to replace the lost support of a deceased wage earner....
27 April 2009 - by Nisha Satkunarajah 
A New York court has ruled in favour of Giselle Marrero, a woman who sought a court order allowing the extraction and preservation of her dead fiancee's sperm. Miss Marrero told the Bronx State Supreme Court that on the day before his death that Johnny Quintana, 31...
13 October 2008 - by Diane Blood 
This past week there have been reports of a case similar to the court case I won against the Human Fertilisation and Embryology Authority (HFEA) in 1997 (1,2,3). A woman was unexpectedly widowed when her husband underwent a routine minor operation in June 2007. Six days before that the couple...
17 November 2003 - by BioNews 
Women in Israel will be able to harvest the sperm of their dead husbands, even if the men had not given their prior consent. But the new guidelines, released last week, also say that a widow will not be able to claim the sperm if the husband had clearly indicated...
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