Supreme Court Considers Survivor Benefits for Children Conceived Through IVF After Parent's Death
March 20, 2012 — The Supreme Court on Monday heard oral arguments in a case that will decide whether children conceived through in vitro fertilization after a parent's death can receive Social Security benefits, NPR's "All Things Considered" reports (Totenberg, "All Things Considered," NPR, 3/19).
The Social Security Administration since 1939 has provided a benefit to the families of deceased wage earners. However, it is unclear whether benefits should be provided to children who were not yet conceived when the wage earner died (Women's Health Policy Report, 11/17/11).
Judges have been divided in interpreting the law. According to SSA, there are 100 claims pending in cases in which the mother is seeking survivor benefits for her children.
The Supreme Court is considering a claim filed by Karen Capato on behalf of her twins, who were conceived through IVF and born nearly 18 months after their father died from cancer (Savage, Los Angeles Times, 3/19).
SSA denied her claim, contending that the twins were ineligible for benefits because Florida inheritance law bars children conceived posthumously from receiving benefits.
The decision was overturned by an appeals court, which ruled that the twins met the law's definition of an eligible child as "the child or legally adopted child of an individual." Other appeals courts have said that state laws should determine eligibility requirements (Barnes, Washington Post, 3/19).
Capato's lawyer, Charles Rothfeld, told the high court that there is "no question that children who are born, who are conceived naturally in the marriage and are born after the father's death are deemed to be dependents and receive benefits." He added, "So I don't think that the fact the child was born after death says dispositively that they were not dependent" (Holland, AP/ABC News, 3/19).
Assistant Solicitor General Eric Miller acknowledged that the law was ambiguous in that it seemed to provide two conflicting definitions of a "child." However, he said SSA had made a reasonable decision in requiring that a person wishing to claim survivor benefits "must show that he or she would have been able to inherit personal property" under state laws (Washington Post, 3/19).
Chief Justice John Roberts said that according to precedent, if a law is ambiguous, the court would defer to SSA's interpretation, meaning that the Capatos would lose. He questioned whether there is any reason to conclude, "based on the last hour" of arguments, that the law is not ambiguous. Justice Elena Kagan said, "It's a mess."
Rothfeld replied, "The problem is that we're dealing with new technologies that Congress ... wasn't anticipating" in 1939.
According to "All Things Considered," the justices "seemed inclined" to leave it to Congress to decide whether it wants to revise the law ("All Things Considered," NPR, 3/19).