Social security benefits for posthumously-conceived IVF children

March 19, 2012Carole 2 Comments »

IVF frequently upends old law that existed before IVF was created. Original laws regarding who is eligible for social security survivor benefits may be a case in point. The 1939 Social Security Act states that Social Security survivor’s benefits go to any child of a covered deceased individual. To further complicate things, social security looks to individual state law to determine inheritance laws and further define child eligibility for benefits.

Enter IVF and the possibility of  posthumous conception.  What is disputed now in at least 100 cases pending in courts is whether a biological child (conceived by IVF  after the death of the covered individual) has the same rights to survivor benefits as a child conceived while the covered individual was still alive.

National Public Radio (NPR) reported on one of these social security cases that was heard on Monday in front of the US Supreme Court.

The Social Security Administration denied benefits to Karen Capato’s twin children who were conceived using frozen sperm from her husband Robert after he died from esophageal cancer. The couple’s previous child who had been conceived before his death was granted survivor benefits by Social Security Administration.

Robert and Karen were wed in 2000 and had one child. Robert was diagnosed with cancer only a few months after they were married. Because he was concerned that chemotherapy treatment would make him sterile, Robert cryopreserved semen before his chemotherapy began. Robert and Karen agreed that they wanted a sibling for their existing child and so before Robert’s death made plans for Karen to use the sperm with IVF to conceive a sibling child. Robert died in early 2002. Karen applied for social security survivor benefits for her existing child who was deemed eligible and provided the benefit.  In 2003, Karen used Robert’s cryopreserved sperm with IVF and conceived twins. This time, when she applied for survivor’s benefits on her twins behalf, she was denied.

The government does not disagree that the twins are also Robert’s biological children, but dispute the claim in part based on state inheritance law in Florida. In Florida,  children conceived after the death of a parent cannot inherit property, unless specifically provided for in a will. Since he died before the twins existed, he could not specifically provide for the twins in a will and therefor, his twins were deemed not eligible for the survivor benefit.

Karen’s lawyer argues that the 1939 Social Security Act simply states that survivors’s benefits are due to any biological offspring of a married couple. Her attorney argues further that the inheritance statutes only become applicable when biological parentage is disputed which is clearly not the case here. Furthermore,  even when children are biologically unrelated to the survivor,  state laws usually do not disqualify them.  For instance, adopted children, stepchildren, grandchildren or even step-grandchildren all  receive survivor’s benefits, making this exclusion of IVF children curious.

The government attorneys argue that IVF children conceived posthumously are different from these other eligible non-biological children 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.”

It will be interesting to see what the US Supreme Court decides. Which factor will be considered dominant in determining eligibility for survivor social security benefits: biological paternity, intent to parent, or time of conception?




© 2012, Carole. All rights reserved.

2 Responses to this entry

  • Meko Says:

    It’s all about the timing. She should not get the benefits. The phrase “with the knowledge that the deceased biological parent will not be able to contribute wages for their support” is all we need to know. This was not an embryo – just sperm. Sperm has no rights to receive social security benefits.

    If she wants to go ahead and have a baby, knowing the father is already dead, then she should take responsibility for paying her own expenses – and not take these limited resources away from a child who was left fatherless (or motherless) through unforeseeable circumstances.

  • Samar Says:

    We had a very easy time getting preangnt with #1 It was on my 2nd cycle of not trying, not preventing. I didn’t chart or anything I found #2 to be a bit just a bit harder b/c I was sort of in a rush about timing. I had an IUD and wanted it out, but just due to scheduling I couldn’t get an appt with my OB til a certain date, so that was annoying/poorly planned by me when you want to get pg, you want it right away, so it was frustrating.I got pg again on my 2nd cycle off bc, so it wasn’t a long time after, but I felt like it was more work than with the first bc we put more pressure on ourselves. I temped and used OPKs whereas with the first I did NONE of that. It was also hard to schedule having sex around O time b/c we were much more busy and tired due to having a toddler, and the first time we were child-less so it was less of a chore . I’m very grateful that both times we’re pretty easy experiences though!

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