The Paternity of Posthumous Children

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?


5 responses to “The Paternity of Posthumous Children

  1. Wow. It’s perhaps relevant that when he died, he stopped being her husband, because marriages only last until death of a spouse. And since only marriage is procreation rights, then there are no more procreation rights when there is no more marriage. So I say posthumous conception should be prohibited, and we should include in the Egg and Sperm law a requirement that the egg and sperm are of a living man and woman. Implantation should not be allowed unless the man is alive at that very moment. (I even think we should prohibit freezing gametes, it’s too expensive and wasteful and risky and there’s no right to do it. If you lose your testicles in an accident, you just won’t have any more children. The world will go on, and it’d be good for people to adjust to that reality, realizing that procreating is not essential for being a good person or entering Heaven or being happy or a real man.)

  2. Of course that is his child if they are paternally related to him. They were no Dependant upon him when he was alive. Not Dependant upon him in death.

  3. Naturally I have no doubt that they are his children (unless there was a laboratory mixup) but being that I don’t know the social security law I couldn’t say.
    To me it makes sense to say that they can still be his children and yet not be entitled to social security, but it all depends on how the law is written.

    • It does indeed depend on how the law is written. I suppose the question I’d ask is how should we think about this? There are many reasons why we might need to decide if the twins are “his” children. Suppose he died without a will. His children may nevertheless be entitled to a share of the estate under intestacy laws. Should these children be included in that? Does that mean we cannot divide up his estate until all the frozen sperm is gone?

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