Should Children Conceived Posthumously Be Eligible for Government Benefits?
When is a child not a child? That’s a question the U.S. Supreme Court was confronted with on Monday, as justices grappled with the increasingly unconventional ways babies are made.
Assisted reproductive technology (ART) is so commonplace that conceiving a child through in vitro fertilization (IVF) is hardly newsworthy these days. Lesbian couples get pregnant using donor sperm and turkey basters. Woman in their 40s use donor eggs, and some rely on surrogates. There are all sorts of ways to build a family, and sometimes tragic circumstances mean babies are born — and conceived — posthumously.
It happened to Karen Capato. In 2003, 18 months after her husband died, Capato gave birth to twins conceived via IVF with his sperm. Karen and Robert Capato had married in 1999; not long after, Robert learned he had cancer of the esophagus. Before he began treatment, he did what more and more people of child-bearing age in his situation do: he decided to preserve his fertility, banking sperm for future use in case cancer treatment left him sterile.
At one point, Robert was doing better and he and Karen ended up conceiving naturally. They had a son in August 2001. But as Robert’s conditioned worsened, the couple planned how to give their son a sibling. Robert in March 2002, but not before putting in writing his intention for his wife to use his sperm to conceive more children.
Here’s where things get tricky: widowed, and with newborn twins and a toddler to care for, Karen Capato applied for Social Security survivor benefits for the twins. The Social Security Administration denied her claim, basing their decision on state law. In Florida, where the Capatos lived, only children named in a last will and testament are eligible to inherit property. But how could a man include in his will children who had yet to be conceived at the time of his death?
“Children who are born after a parent passes away didn’t choose the way they were conceived,” says Laura Riley, a staff attorney at the Cancer Legal Resource Center, a program of the Disability Rights Legal Center at Loyola Law School. “They have a right to be free of discrimination based on the circumstances of their conception.”
Social Security benefits are typically awarded to children of deceased wage-earners provided that the children were dependents at the time of death. How to handle kids not only born but also conceived posthumously? “Congress wrote the Social Security Act in 1939 at a time when no one even remotely contemplated what’s going on now with assisted reproduction,” says Charles Rothfeld, an attorney who argued in front of the Supreme Court on Monday on behalf of Karen Capato. “Had they known this kind of thing would happen, how would they have viewed children of this sort, as eligible for benefits or not? We think they would have intended all natural biological children of a married couple to be entitled.”