A while back I noted that the Supreme Court had agreed to review a case arising out of posthumous reproduction. (For more details you can follow the train of posts back from that link.) The case was argued today and here is the NPR story on the argument.
The facts here are fairly simple and fairly typical. A man, fearing he would not survive, froze his sperm for use by his wife. After he died she used the sperm to conceive twins. When the twins were born she applied for benefits through his social security account.
Had the twins been born before he died they would of course get social security. This would be so even if they had used third-party sperm. He would have been their father (married couple, remember) and they survived him. Had they been conceived in his lifetime–whether with his sperm or third-party sperm–the case would also have been fairly straightforward.
These circumstances–the ones I just mentioned–were within the contemplation of congress when it enacted the law. But Congress wasn’t thinking about the possibility that a man’s sperm could be frozen for later use. And so the law doesn’t really fit the situation.
Nina Totenberg gives a fairly vivid account of the argument and it sounds unlikely to me that the wife/children will prevail. It’s curious, though, that the issues that most strike me weren’t in her story. (I don’t know if the Court raised them.) How long after death can the woman wait to use the sperm and still claim social security benefits? Five years? Ten years? Twenty years? And how many children can she have? Is the number limited to what he might have contemplated?
These issues have little to do with the language of the statute (which is what the Court should properly confine itself to). But they trouble me. They make me worry that once you open the door on posthumous reproduction just a little bit you have no way of controlling it.
I also found one of the questions asked really provocative. I think it might have been Justice Ginsberg’s. She asked what would happen if the wife remarried and then used the sperm. I take it the children would then be children of her new husband and not her previous husband. It’s not a hard question to answer but there is something there to think about.