The problem of social security benefits for posthumous children is one that arises from time to time. I discussed a case of that sort about 18 months ago. Now there’s a recent Third Circuit decision on the topic (and my thanks to Raegen Rasnic at Skellenger Bender for tipping me off.)
Let me first recite what I think of as the basic scenario and then you can begin to think about which additional facts matter. Man (here Robert Capato, a husband, but what if not married?) agrees to have sperm frozen for subsequent use by a particular person (here Karen Capato, his wife.) He dies before sperm is used. Twins are conceived and born 18 months after his death. Do those children qualify for social security benefits on the theory that they are his surviving children?
The first question–one addressed by the court–is whether they are his children within the meaning of the Act. The court says that they are relying on the plain meaning of the words. In some sense, this is probably the easiest case you can think of: The children are biologically related to both of the Capatos and Mr. Capato clearly contemplated having his wife use his sperm to conceive children.
I’m not quite sure what I think about this. Of course, my main question is what makes these the children of the ? Is it enough that he wanted them to be brought into being? Suppose he had specifically obtained sperm from a brother for his wife to use–would those be his children? Or is the genetics alone enough? (See some of these other cases discussed earlier where sperm is collected posthumously, even where we may not be confident the decedent directed this.) What about if the widow remarries and then uses Mr. Capato’s frozen sperm (perhaps she marries the brother, but now let’s make the brother be sterile.)
There are so many variations to spin. I won’t go on here because, as the court says, it only has to deal with the case at hand.
Notice, however, the last line of the opinion: The court remands the case to the district court “for a determination of whether, as of the date of Mr. Capato’s death, his children were dependent or deemed dependent on him.” (My italics added.)
Perhaps here there is a meaning other than the obvious one, but I’m not familiar enough with this area of the law to say. It seems to me that as of the date of Mr. Capato’s death there were no children. There were vials of cryopreserved sperm. This being the case, it’s pretty hard for me to see how you could say the children were dependent on him at that time. Surely the decision whether to go ahead and create the children was no longer his to make.
As always, it’s thinking about where the edges are that most interests me. If Ms. Capato uses Mr. Capato’s sperm again in ten years, is that also his child for social security benefits? Is it his child even if she purchases an egg from someone else and uses a surrogate? Or what about if Ms. Capato offers the sperm to a friend? Law professors delight in such hypotheticals, but what do we do when it really happens?