Is A Baby Conceived After Dad's Death A 'Survivor'?

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Two eras clash on Monday at the U.S. Supreme Court, when a law written in 1939 is applied to in vitro fertilization. At issue is whether children conceived through in vitro fertilization after the death of a parent are eligible for Social Security survivors benefits.

At least 100 such cases are pending before the Social Security Administration.

This test case was brought by a mother whose twins were denied benefits because they were conceived after their father died. Karen and Robert Capato were married for only a few months before Robert was diagnosed with esophageal cancer in 2000. Fearing that his chemotherapy treatment might leave him sterile, Robert deposited sperm at a fertility clinic before his treatment began.

Although he initially appeared to recover, by Thanksgiving of 2001 his condition had begun to deteriorate. Because the couple wanted siblings for their son, they made plans for Karen to use the frozen sperm to conceive a child after Robert's death.

Less than four months later, Robert died at the age of 44. Karen then resumed the couple's attempt to have another child. And in 2003, after a successful round of in vitro fertilization using her husband's sperm, she gave birth to twins.

At least 100 such cases are pending before the Social Security Administration.

As she had with her other child, she immediately applied for survivors benefits for the twins, based on Robert's earnings under the Social Security system. But the agency denied the claim.

The government concedes the twins are Robert's biological children. But the Social Security Administration says that it determines eligibility based on the inheritance laws of each state, and in Florida, where the couple lived, children conceived after the death of a parent cannot inherit property, unless specifically provided for in a will.

Karen Capato counters that under the 1939 Social Security Act, survivors benefits go to any child of a covered individual, and the word child is "plainly defined" as the biological offspring of a married couple. She contends that the section of the law dealing with state inheritance statutes only kicks in when the "biological parentage is disputed."

Last year, a federal appeals court in Philadelphia agreed with Capato, saying that "undisputed biological children of a deceased wage earner and his widow [are] 'children' " under the meaning of the Social Security law. The court noted that this was a case "where medical-scientific technology has advanced faster than the regulatory process."

The Obama administration appealed to the U.S. Supreme Court, contending that the lower court had ignored more than 70 years of government policy dictating how to determine the eligibility of survivor benefits for children.

In its brief setting out its arguments, the government maintains that posthumously conceived children fall outside the class of children entitled to survivors benefits because "they were brought into being by a surviving parent with the knowledge that the deceased biological parent will not be able to contribute wages for their support."

The administration also makes a states' rights argument, contending that "child-parent relationships are generally determined by state law" and that nothing in the Social Security Act "suggests that Congress intended to depart from that approach."

Lawyers for Karen Capato reply that the Social Security Act is a federal program conferring federal benefits. They accuse the government of making an argument that "makes no sense at all" and indeed is "perverse."

Under the government's reading of the statute, say the Capato lawyers, a posthumously conceived biological child of a married couple is not entitled to survivors benefits, based on state inheritance law, but those state laws do not disqualify adopted children, stepchildren, grandchildren or even step-grandchildren.