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Are Children Conceived After Father’s Death Entitled to Survivor’s Benefits?

March 19, 2012 at 12:00 AM EDT
The Supreme Court heard arguments Monday on whether children conceived after the death of their biological father, using his frozen sperm, should be entitled to Social Security benefits. The National Law Journal's Marcia Coyle said it's not the first time a court has faced reconciling an old law with new technology.

JEFFREY BROWN: And now to a very different legal kind of challenge that came before the Supreme Court today.

Margaret Warner has that story.

MARGARET WARNER: At issue is whether children conceived after the death of their father, using his frozen sperm, are entitled to get his Social Security survivor’s benefits.

Here to walk us through the case, as always, is Marcia Coyle of The National Law Journal.

Marcia, welcome back.

MARCIA COYLE, The National Law Journal: Thanks.

MARGARET WARNER: So, first of all, explain, how did this case, which pits the Social Security Administration against a widow with, what, now 8-year-old twins, how did it end up in this court?

MARCIA COYLE: Well, Nick Capato, who was the father in this instance, he was diagnosed with esophageal cancer back in 2001. He and his wife wanted to have another child as a sibling for the child they did have.

And so he had his sperm frozen before he underwent chemotherapy because he feared he would become sterile after the chemotherapy treatments. After he was treated, he seemed to recover for a while. But then he went downhill and he died in 2002.

About 18 months after his death, his wife gave birth after undergoing in vitro fertilization to the twins. She applied for Social Security survivor benefits for the twins, just as she did for their other child. The Social Security Administration denied them, said that she wasn’t eligible. She went to court.

The lower federal appellate court here found that the administration was wrong, that she did qualify. So it’s the government, the Social Security Administration, that brought the appeal to the Supreme Court today.

MARGARET WARNER: Now, the original law or provision of the law that established survivor benefits was meant really to, what, protect or help a youngish widow who is suddenly left without a wage-earner.

MARCIA COYLE: Well, basically, it’s to replace the income that they were dependent upon until the wage earner’s death. And the law was passed back in 1939, I believe.

So it really didn’t anticipate the kinds of situations that the court faced today.

MARGARET WARNER: So, what were the arguments in court today?


The issue here — and I want to say we often talk about constitutional questions on the NewsHour, but the case today is the type of that’s very much bread and butter of the Supreme Court, trying to resolve conflicting language within a federal law.

There were two issues — two provisions of this law at issue, the definition of child. That definition says a child is the child or the legally adopted child of an individual. Another provision is entitled determination of family status. And it gives a list of ways to determine whether the child is eligible for benefits.

Those two are at conflict. The government argued today that you have to look to the second, the determination of family status. You have to look to state law to see if the child is eligible. In this situation, Mr. Capato died in Florida. He did not provide for his twins or any children born after his death in his will.

And under this particular provision, since those children cannot inherit, they do not get survivor benefits. The lawyer for Mrs. Capato, though, says the definition of child ends it. These are children who are born of — biological children of the married parents, and that should govern.

MARGARET WARNER: But then what about the clause you mentioned about that the child has to have been dependent on the parent at the time the parent died, which implies the child is alive?

MARCIA COYLE: Yes. That’s a second requirement here.

If Mrs. Capato wins and the court finds that she meets the definition of child and is eligible for benefits, the second requirement is to show that the children were dependent upon the parent at the time of his death. So, she still would have to go back and fight that battle.

MARGARET WARNER: So how did the justices react to this very human case?

MARCIA COYLE: They didn’t seem happy with either argument. And they saw lots of problems.

Justice Alito gave a hypothetical to the government of, what if a state — since you want to look at state law, what if a state had a crazy law that said the biological children of married parents can never inherit? And Justice Breyer and Chief Justice. . .

MARGARET WARNER: Right. Would you then make a federal benefit depend on that?

MARCIA COYLE: Right, exactly.

And Chief Justice Roberts said, okay, well, the children here were born 18 months after the parent’s death. So, he said to Mrs. Capato’s lawyer, well, what if the children are born two years after the parent’s death?

Justice Breyer said he didn’t think that any of the arguments being made were going to solve the problems that they saw coming down the road. And so they were very aware that this — and many of them mentioned that this is new technology that Congress could not have foreseen in 1939.

MARGARET WARNER: What — how many people potentially are affected by this?

MARCIA COYLE: Right now, the government estimates that there are about 100 applicants in this position, applicants for survivor benefits.

It’s also interesting, too — it was noted in the briefs that soldiers going to Iraq and Afghanistan, a number of them have also preserved their sperm in the event that they’re killed or they’re injured in a way that they cannot have children. So, there’s many more than just the death of a parent from cancer that could be affected by the court’s decision.

MARGARET WARNER: Well, and referring to what you mentioned earlier, this is not the first time this court has had to face reconciling an old law with new technology.

MARCIA COYLE: No, absolutely.

In fact, just this term, we discussed how law enforcement was using GPS devices to surveil criminal suspects. And — but this comes in a very different type of case, a civil case, not a criminal case. And I think as we go forward, we’re going to see more and more the new technology coming to the court in different guises.

MARGARET WARNER: And how it affects ordinary people.

MARCIA COYLE: Definitely.

MARGARET WARNER: Marcia, thank you.

MARCIA COYLE: My pleasure.