Tag Archives: posthumous

Michigan Weighs In On Posthumous Conception–Children Are Not Heirs, No Social Security

One recurrent question here has been whether children conceived after the death of a genetic parent can received social security benefits ordinarily available to a surviving child.    Last year the Supreme Court made clear that the answer depends on state law.  Entitlement to benefits does not spring from the fact of a genetic relationship but instead turns on whether the child would be considered an heir under the law of the state.

This means, of course, that the treatment of posthumously conceived children will vary depending on what state their deceased parent was living in at the time he/she (but usually he) died.   This might seem problematic but perhaps it is no more problematic than the fact that whether the posthumously conceived child will be recognized as an heir also varies.     It’s just one more instance of the patchwork-quilt-like nature of family law in the US.    Continue reading

The Supreme Court’s Opinion and the Fine Art of Drawing Lines

I’ve been thinking about the opinion the US Supreme Court issued yesterday–the one about whether posthumously conceived children qualify for social security benefits.   I did a fairly quick review of the opinion yesterday, but there’s surely more to say.   There are layers of questions about what lines are drawn, who draws them, and whether they are permissible.

The children here argued that the line had been drawn in an impermissible way.

“Under the government’s interpretation . . . , posthumously conceived children are treated as an inferior subset of natural children who are ineligible for government benefits simply because of their date of birth and method of conception.”

Brief for Respondent 42–43.  In other words, she asserted that drawing a line between children conceived before the death of the husband/sperm provider and those conceived after his death was impermissible.

Of course, line drawing is often what law is all about.   Continue reading

Supreme Court Rules on Frozen Sperm Case–No Social Security for Twins Conceived After Husband’s Death

You all know I’ve been following the case of Astrue v. Capato for a long time.    There are many past posts.    The Supreme Court has now decided the case.  Bottom line:  on these particular facts, children conceived from frozen sperm after the death of the husband who provided the sperm cannot receive his social security benefits.

The opinion is unanimous but also rather complicated.   I’ll give a first read/reaction here, subject to later amendment.

Karen and Robert Capato were married.   Sadly, he died just a few years into the marriage.   Before he died, some of his sperm was frozen.    Nine months or so after his death, Karen used the sperm to create twins who were born 18 months after his death.   She sought social security benefits for the children.  Continue reading

One More Look At The Posthumous Conception Case

At the risk of beating a dead horse (something I’ve been known to do) I want to spend just a little more time on the Supreme Court case argued earlier this week.   I’ve commented on the case before but in reading through comments I was finally moved to go and read the briefs.   If you are similarly inclined, you can gain access to them here.

I was struck by the extent to which the dispute between the parties (the Capatos on one side and the social security administration on the other) resembles a conversation that we’ve had repeatedly here.   The core question in the case is what does it mean to be someone’s child.  In other words, who is a “child” of the decedent?  Continue reading

A Postscript on Posthumous Conception and Social Security

I wrote yesterday about the posthumous conception case heard by the US Supreme Court.   After reading some of the press coverage I wanted to add one more observation.

Look at this coverage from the Time blog Healthland.   I was particularly struck by this quote and the reasoning behind it:

“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.” Continue reading

Supreme Court Hears Posthumous Reproduction Case

A while back I noted that the Supreme Court had agreed to review a case arising out of posthumous reproduction.   (For more details you can follow the train of posts back from that link.)  The case was argued today and here is the NPR story on the argument.

The facts here are fairly simple and fairly typical.   A man, fearing he would not survive, froze his sperm for use by his wife.   After he died she used the sperm to conceive twins.   When the twins were born she applied for benefits through his social security account.

Had the twins been born before he died they would of course get social security.   This would be so even if they had used third-party sperm.  Continue reading

Can Posthumous Children Be Heirs?

I’ve written a number of times about the problems presented by children conceived after the death of a man who provides sperm used to create the child.   If you go read those posts you’ll see that in general I’ve been thinking about children conceived via sperm that was frozen before a man died (or in a few cases, harvested just after his death.)   The main issue I’ve written about has been entitlement to Social Security benefits.   The Supreme Court has agreed to review one of these cases and so we’ll have an interesting opinion to digest before the end of the Court’s term.

There’s a recent article in US News & World Reports  that discusses some of these questions, but as the article makes clear, the ones involving frozen sperm are really a subset of a larger set of perplexing cases.   Continue reading