Supreme Court Hears Posthumous Reproduction Case

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.

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9 responses to “Supreme Court Hears Posthumous Reproduction Case

  1. This is so silly. The survivor benefits have to do with being a parent’s dependent while the parent was alive and therefore being left without support in death. A child conceived after someones death was unquestionably not their dependant while they were living therefore there is no continuing obligation to provide support for them in the form of death benefits. Its so slam dunk. Why are the other questions even germane. They were never his dependents on his tax return. Let’s make it even easier. Survivor benefits go to your dependants even if they are not your children. I could be taking care of my neice and claiming her on my taxes and if I die my death benefits will go to her until she is 18 just like they will also go to my daughter until she is 18 and my husband gets them the rest of his life unless I divorce him. It seems an aweful waste of money that could be used to help him with my daughter. Anyway. dependent.

    • I rather agree with you here. And it’s the question that two of the justices seem to have gone off on–essentially they cut to the chase and said even if they are children of the deceased, they are not entitled to benefits. For a variety of reasons (and I don’t know them all) that’s not the first question that was litigated. The first question litigated was “are they his children within the meaning of the act.” That’s the only question the appellate court decided and the only question the parties briefed for the Supreme Court so it is (technically) the question that the justices ought to be thinking about. I mean that only as a matter of how legal process is supposed to work. And of course this question–are they his children–is one that is important,too. It also has a history that stretches back long before ART.

  2. If we properly limited conception rights to married couples using their own gametes, it would stop posthumous conception also, since marriages end at death. It’d be OK to conceive the day before he dies (think of husbands having sex with their wives the night before going off to war) but not after he dies. Otherwise, if we continue to allow sperm banks, we should prohibit posthumous conception. The language Margeret Somerville proposes for her Egg and Sperm law differs from my proposal and from the PCBE’s proposal because her’s specifies that the sperm and egg come from a living man and woman. I agree but my proposal purposefully only prohibits things that haven’t been done yet, as a talking point to help reach consensus faster.)

    (and incidentally, I also use that example of a husband and wife conceiving the night before he goes off to war to show that conception is not the same thing as fertilization which might not take place until a day or two after intercourse. And though we know that, we never say that the conception occurred two days after intercourse, we say that the baby was conceived the night before he went off to war.)

    Also, we are due to revise how we dole out all these social security benefits, there is clearly way to much marriage fraud going on, where people marry in their retirement just to improve their benefit package. I think we should only count marriages before age 40 for survivor benefits.

    • As a general matter I wouldn’t limit conception rights to married couples–actually, I’m not even sure what that means. Unmarried heterosexual couples can engage in sex and can conceive, of course. To say they do not have a right to do so might suggest that the conduct could be criminalized or otherwise sanctioned.

      That said, I think you are right that the marriage ends on death–I think this was a point made by one of the justices. So a child conceived after the death of the husband is not conceived during the marriage. Given the language of the existing statute this is one way to answer the question posed in this case.

    • John your so cranky. That would really piss some people off. Would you end joint property for marriages after 40 as well? Would you not be able to claim your spouse as a dependent on your tax returns either because the death benefits are to offset the losses of a spouse who relied on their spouse for paying half the bills in the household. So you’d basically have to invalidate the financial aspects of a civil marriage. And hey if you work all your damn life for that measly social security check and you are nearing death and have a best friend that could use the money I say marry that best friend man or woman so the money you earned goes to someone you care about rather than into the pot of social security money the government has been stealing. You earned that money and if someone you care about could use it I say have at it.

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