A Brief Interruption: Supreme Court Takes Posthumous Paternity Case

I’m going to interrupt myself for a moment here to cover an important development in a different area of law.   I’ve written several times about conflicting cases involving social security claims  (or other benefit claims) brought by children conceived after the death of the man whose sperm was used for conception.   The United States Supreme Court has now agreed to review this question.

The case the Supreme Court took for review is one I’ve written about before.   Robert Capato and his wife, Karen, decided to freeze some of Robert’s sperm as he was facing a grim diagnosis of esophageal cancer.   Unfortunately he died in March, 2002.  Karen used the sperm 18 months and gave birth to twins in September, 2003.   The question is whether the twins are entitled to social security survivor benefits. 

The government takes the position that they are not because the twins could not have inherited under the relevant state’s intestacy statute.   The government says the relevant state in this case is Florida, but more fundamentally it says that the critical question depends on state law.   Karen and the twins say that’s the wrong test.   They contend that since the twins are clearly biological offspring of Robert, that’s all you need to know.

The Third Circuit accepted this argument–meaning it ruled against the government.   (It’s worth noting that the Third Circuit does say there’s another question to be answered–whether the twins were dependant on Robert at the time of his death.   That would seem to be a tricky question for the twins, but no one has gotten to it yet.)  But other circuits (discussed in other posts) have disagreed with the Third Circuit.

This is the kind of thing where the Supreme Court does step in to settle things and that seems to be what it hopes to do here.   It’s worth noting that the rule the government proposes involves reference to the law of the relevant state and that the law might vary.   Some states might allow posthumously conceived children to inherit while others might not.    This would seem to mean that the ultimate outcome would also vary state to state, but it might be that the government would argue the remaining point (dependant at time of death) to exclude even  those posthumously conceived children who might otherwise qualify.   I don’t know that, but it would not surprise me.

It’s worth watching this case because the respondents (that’s the mother/twins) contend that clear genetic linkage is enough to make someone a child for purposes of social security.   We’ll have to see what the Court says about that.



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