There’s yet another case about the paternity of a child born from sperm used after the death of the man who produced the sperm. (There’s a whole string of these, some of which I’ve written about.) As is often the case, the facts here aren’t in dispute–what is disputed is how the law applies to those facts.
Janice and Don Schafer, Jr. were married in June, 1992. Three months later, Don was diagnosed with cancer and warned that chemotherapy might make him sterile. In December, 1992 he had sperm frozen for later use. He died in March, 1993, at which point the sperm had not been used.
Janice used the sperm to conceive in April, 1999. The child, WMS, was born in January, 2000. (That’s a bit less than seven years after Don’s death.)
The question presented is whether WMS is entitled to social security benefits that are available to children whose parents have died. In this instance, the court (US Court of Appeals for the Fourth Circuit) says “no.” That’s in contrast to the opinion of the US Court of Appeals from the Third Circuit, which answered “yes” ina similar case I wrote about earlier this month.
The cases turn on the interpretation of the federal and state statutes that govern social security and I won’t go into detail here. You can certainly read the opinions and I wonder a bit whether the Supreme Court will take one of these cases to insure uniformity in the federal system. We’ll have to wait and see on that one.
In the meantime, there is one striking difference between the two cases and this leads me to some other musings: In the Third Circuit case, the child was conceived seven days after the death of the sperm-provider/husband rather than six years later, as was the case in the Fourth Circuit case. Does that matter?
It’s hard for me to resist some notion that the lapse in time does matter. On a purely emotional level it seems like it should. But law isn’t directed by emotion so it’s worth making the effort to be analytical.
As I’ve noted before, one thing interesting about the posthumous conception cases is how they fit with different ideas of what makes a person a parent. It seems to me that if you think DNA defines (or should define) legal parentage, then it’s hard to explain why the passage of time matters. The genetic relationship between the decedent and the child born nine months after his death is just as close as the genetic relationship between the decedent and the child born ten years after his death.
(I do understand you can say that we shouldn’t allow people to do what was done here, but that ship has sailed, as it were. We have and do allow people to do this, leaving us with the question of how to respond when they do what is permitted.)
Curiously, you can say more or less the same thing if you take a functional approach (as I do). If you think it’s the functional relationship between adult and child that makes a person a parent, then it is very hard to explain why the passage of time matters in these cases. There is no functional relationship between the sperm provider and the child whether the child was conceived a week after the sperm provider’s death or a decade later.
So if the two cases are different, it must be because of some other factor. What would that be? (I’m going to assume intent in both cases, just to take care of that possibility.)
All of this leads me to think about a comment Kisarita made on the last post. The passage of time is particularly important for de facto parents. De facto parents are created by the passage of time and it seems like they might also be destroyed by the passage of time. If a person who has played a parental role leaves a child’s life, is the person still a parent ten years later? Why? Can I make it be a one way street?
The permanance of parenthood is something of a given–if you are a parent, you are a parent forever. Seems like I’m going to have to work through how that might fit with a de facto framework.