There’s a recent Ninth Circuit case that deals with a problem that comes up with some regularity, even if you wouldn’t call it common. (The opinion goes into a lot of detail, but you can find a reasonable press account of it here.)
The basic question is whether a child conceived using frozen sperm after the death of the man who was the source of the sperm can be considered to be the child of that man for purposes of obtaining social security benefits. It’s not the specific answer the Ninth Circuit gives here that I want to talk about. I’m interested in thinking about how we ought to approach that problem.
The basic facts are simple. Gabriela and Bruce Vernoff were married. He died unexpectedly in July, 1995. Gabriela got a doctor to collect sperm after his death and had it frozen. (I’ve written about a couple of other recent cases where this procedure was approved by a court, but there’s no evidence of court involvement at this point in this case.)
Gabriela used the sperm to become pregnant in 1998 and Brandalynn Vernoff was born in 1999, four years after Bruce’s death. The question for the court is whether Brandalynn is entitled to the benefits a surviving child recieves on the death of a parent.
The Ninth Circuit contains a detailed analysis of prevailing California and social security law, but in large part the question is whether Brandalynn is legally the child of Bruce. The court concludes she is not, largely based on its analysis of California law. (This means, of cousre, that the same facts might lead to a different outcome in a different state.)
The court’s opinion contains a discussion about what might make Bruce a parent to Brandalynn. The obvious factor is the genetic relationship, but the court examines California law and concludes that DNA is not determinative. The passage of time (four years between the death of the donor and the birth of the child) is also problematic.
Instead of tracing the court’s analysis any further, I’d like to just think for a moment about how the law ought to handle this. One starting point might be to think about why surviving children get social security benefits at all. It’s not a general form of welfare. It depends on a specific legal relationship between the deceased and the child, and it depends too on the deceased’s history of earnings.
I know that people have written about the social security question, but I haven’t gone back to read what is out there. I find myself thinking that at least two things could be important. One is intention of the dead man. If he was planning to become a parent (and perhaps if he was far enough along in his planning) that would seem to argue in favor of benefits.
The second factor I’d want to consider is passage of time. Perhaps there does need to be an arbitrary line drawn with posthumous children at some point.