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IVF children possibly not considered "survivors" under the law
March 19, 2012 (Morning Edition) ? 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.
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.
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.
This whole thing just seems so sad to me. I can't imagine dealing with this after losing a spouse to cancer. 
Re: IVF children possibly not considered "survivors" under the law
I think you should change your title, as the whole issue of whether they are considered survivors is precisely what is before the Court. No final decision has been made.
Question: do the state laws not disqualify adopted children, etc. if they were adopted after the beneficiary has died? i.e. I adopt a child after my H dies - is that child a "survivor"?
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of course not. Nor are children borne to subsequent spouses. That's silly. It'd be a single person adoption in that case; with the possible rare exception of someone dying in the midst of signing the papers.
Ok, I changed it. Sorry about that, I didn't word it very well.
Right. Which is why I don't understand the comparison they're trying to make.
Unless the goal is to say "Well, if adopted or step-children - who aren't REALLY that guy's kid, btw, since they're not related by BLOOD - get benefits, then his biological offspring should!"
Which is kinda assy, IMO.
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How does it work if a parent dies when the mother is still pregnant? Does the baby get survivor's benefits then?
I can sort of see the other side --this woman chose to have children after the death of her husband. In effect her husband was a sperm donor and she a single mother. Are survivor benefits of sperm donor's children available when the sperm donor passes away just because of biology?
It makes me feel weird to even compare this woman's decision to a sperm donor though. It's not at all how I would feel if I were in her shoes. Such a gray area.
I agree. Also, spirit of the law. SS survivor's benefits provide for minor children. You can make a large assumption that this means that the deceased parent likely died an early death, and likely didn't have stockpiles of cash laying around in the event of their death. As this country, theoretically, has a safety net in place to make sure its children are raised and publically educated until the age of 18 and the death of at least one parent might otherwise interfere with that... there you go.
These people were well aware they could afford more than 1 child on her income alone. She may have even had to pay for IVF out of pocket. Not to sound heartless, but the intention is totally different. The twins are not survivors in the tragic sense that they were once a happy, nuclear family and their father died. They were concieved after his death, with the full knowledge that their mother would be raising them alone. I would honestly compare this more to the lottery winners who collect public assistance beccause the state looks at income, not assets. I have doubts that the mother NEEDS the extra few hundred bucks a month in this scenario. It's about what she thinks she deserves.
40/112
Yes.
40/112
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As someone currently watching their dad die from esophageal cancer, and watching their mom run herself ragged caring for him, I probably have a different perspective.
The husband died around March 2002. For the twins to be born in 2003, they were conceived sometime during the 11 months following her husband's death. I'm sure she could have pursued IVF and gotten pregnant while her husband was still alive (avoiding this whole situation) but the physical demands of caring for an end-stage cancer patient and the emotional toll and stress involved would have made it dangerous for mom and babies.
They made the decision TOGETHER to bank his sperm for the express purpose of attempting to have full biological siblings for their son. SHE did not decide to become a single parent, THEY decided to expand their family regardless of her husband's ability to parent the child(ren) resulting from IVF.
Actually, I read in another article, that he banked his sperm, not with the intent to expand their family postmortem, but out of fear that chemo and radiation would make him sterile.
So says the wife, but how can you confirm that?
Also, the article mentions that in Florida, one can use a will to endow his or her survivors, including children concieved post-mortem, with benefits. He did not do that.
40/112
will all due respect, while they may have decided together that the expansion of their family was a goal, and while care of him in his waning days may have prevented the wife from pursuing that goal, ultimately she alone made the choice to conceive children after his death, knowing that she would be raising them as a single parent. they did not survive him, even in the womb.
I'm sorry to hear about your father. I can't imagine how difficult it must be for you and your family.
Like a PP, I also read that they banked the sperm b/c of concerns the treatment would leave him infertile. And while I agree that perhaps they made the decision together to have more children, she was a widow when she went for the IVF and got pregnant. She made the conscious decision to birth and raise those children as a single parent after he was already gone.
While tragic that the guy died at 44 years old the twins shouldn't be eligible for his benefits. Esp since they were conceived knowing that he wouldn't be paying into SS anymore.
I was under the impression that they banked his sperm for fear that his treatments would leave him sterile, not so she could continue to bear his children after his death.
I agree with many of the pps. It just feels kind of odd to me that she would try and claim them when they were conceived after his death. Don't get me wrong, I feel terrible for her and it is a sad situation, but I don't think the government is out of line on this one.
1) most clinics where a couple bank sperm make the spouses sign a form dictating what should happen to it in the event of either spouses death. If he agreed to the wife's use of the sperm then he consented to her pregnancy.
2) How does she explain to the twins why their big brother gets benefits and they don't without making them seem either a) like second class citizens or b) like they are less important then big brother.
Whether she needs the money or not these kids are from the marriage (they banked the sperm together with the intention of having children, and wanted more than one).
The twins deserve the same treatment as their full sibling big brother. Anything else is unfair.
It would be different if she had the sperm taken at his death and then decided on her own to have another kid(s) but they chose this together and she was honoring his wishes in having more kids.
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."
This pretty much sums up how I feel about it. As horribly tragic as it is, if the children weren't conceived prior to the father's death, the plan was set in motion knowing his income wasn't going to come into play. Their intent has nothing to do IMO with the obligation of SS to pay survivor's benefits.
No, he consented before his death. When you provide any gametes for frozen storage they explain the rules and you sign for each specific circumstance.
But, the child was a planned conception, she knew to plane for supporting them on her own. I don't think they should qualify.
By the time the children are old enough to understand Social Security death benefits, I think they'll be old enough to realize they were conceived after their father's death.
The law is not about making siblings feel good about 'fairness'. It's about the fact that you have to *survive* someone to receive survivor benefits. These children did not survive their father - they didn't even exist when he died. Therefore they are not legally entitled to survivor benefits. What their older brother gets is totally irrelevant. Not to go all Pamela, but life isn't fair.
I agree with this.
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I'm going to have to agree with this.
Whether both parents consented to the birth is a moot point. The mother knew that she was choosing to have more children as a single parent. If her finite resources were going to be stretched, that is a risk that she knowingly took.
I feel very bad for her because she's been through an awful time. However, she chose to conceive after her husband died. Given that the children had not been conceived at his time of death I fail to see how they could be considered his "survivors." I would think you would have to currently exist in order to survive someone.
As far as it not being fair that their brother gets benefits and they don't, are the benefits going into a trust for him that he'll eventually get or do they go to his mother the assist with the costs of raising a child? Unless they're being saved for him I can't imagine how any of the three children would be specifically aware that this money is coming in? I know I don't discuss the details of our finances with our kids, I can't imagine this woman is either.