A Postscript on Posthumous Conception and Social Security

I wrote yesterday about the posthumous conception case heard by the US Supreme Court.   After reading some of the press coverage I wanted to add one more observation.

Look at this coverage from the Time blog Healthland.   I was particularly struck by this quote and the reasoning behind it:

“Children who are born after a parent passes away didn’t choose the way they  were conceived,” says Laura Riley, a staff attorney at the Cancer Legal Resource  Center, a program of the Disability Rights Legal Center at Loyola Law School. “They have a right to be free of discrimination based on the circumstances of  their conception.”

Now generally a claim for equal treatment is a powerful one, because we all like to be in favor of equality generally.   But as I’ve said other places, equality claims can be tricky and may need to be carefully examined.

Think about this one.  As a general matter, I agree that children conceived via ART should not be treated differently than children conceived via intercourse.  Thus if a state had a law that said children born during a husband’s lifetime who were conceived one way were to be treated differently from children born during the husband’s lifetime who were conceived the other way I’d say you had a problem.

But is that what is happening here?   Is the line being drawn between children conceived via ART and those not conceived via ART?   I think it would be more accurate to describe a different line–a line between children conceived before death and those conceived after death.   All those in the first category are covered by social security.  All those in the second category are excluded.

(It is true, of course, that all those in the second category are children conceived via ART, but that’s not the reason they are being excluded.   The best way to demonstrate that is to observe that those conceived via ART during the husband’s lifetime are covered.)

The next question for me, then, is whether it is reasonable to draw a line based on when the child is conceived.   (For those who are really thinking about legal analysis, note that there’s also a question of what sort of scrutiny a court might use for a line based on time of conception relative to death.  I don’t think it’s likely courts will find this a problematic category, so I think they’d just think about rationality.)

Now I think you have to draw a line somewhere.  We know sperm can be frozen for decades and the idea that you could come along twenty years after a man died and claim entitlement for his child’s social security benefits seems unreasonable to me.   And anywhere you draw that line is rather arbitrary.   Could be five years or two years or at the time of death.   So if the legislature chose to draw the line there, I guess I think it is there right.

After all, any child conceived after the death of the man is conceived knowing there will be no social security (at least once the law is cleared up.  This is not the case now.)  The child is also conceived quite deliberately.  So you make your choice about whether you want to have a child under these circumstances.

It’s probably clear that I’m not overly sympathetic to these claims.   It does seem clear to me that a man should be able to make provisions for posthumously conceived children in his will, should he choose to do so.  And we need to take care of children conceived before the death of the man, as they may have been conceived when there was no thought that he might not be there to help raise them.

There’s one last question I’d toss out.   Suppose husband and wife wanted to have children but discovered health issues and so were using ART.   Imagine they discovered a defect in  husband’s sperm and so used sperm from a third-party.   If a child was born in this manner before the husband died, social security is clearly available.   But what about if he died leaving the sperm and instructions that he wanted her to continue to use it.    I cannot imagine that if a child were conceived with that same sperm after his death many people would say it was his child.   That’s an interesting thing to think about for another time.

12 responses to “A Postscript on Posthumous Conception and Social Security

  1. Not that what I say is so interesting that you gotta catch it every time, but you don’t even address what I said in my comment on your last post about this which is Social Security death benefits go to the persons dependents. If you are claiming a qualifying minor on your tax returns as a dependent and you die, that qualifying minor will receive death benefits until the age of 18. A child born after your death was never your dependent therefore does not qualify for death benefits. The idea is that your death left someone you’d been supporting in the lurch as it were. If you plan to have a child after your dead, you cannot claim them on tax returns not yet filed…has not happened yet. The best you can do is set up your estate to provide for them, but again those tax returns which would qualify them as having been your dependent have not filed yet.

    This is not the least bit discriminatory to say that children who were not claimed as qualifying dependents on any tax returns could possibly qualify for death benefits. If you want children born after you die to qualify for death benefits you’d better start claiming them as dependents while your alive and methinks that would be considered fraud of some sort.

    Jennifer Lahl, the film maker who made Anonymous Father’s Day and Eggsploitation, got wind that I was going to talk to Nancy Pelosi about a law I thought was a good idea – Jennifer has considerable experience talking to those types of people and she wanted to give me the low down on how to act what not to say (we know I have a problem biting my tongue). In the course of that conversation Jennifer said that she had testified in a congressional hearing or something giant like that, about this very topic -social security death benefits for children conceived with sperm from dead men. She said she testified in favor of the benefits being granted and I said exactly what I said above – that the suggestion was ludicrous because the child was not a dependent on the dead person’s tax returns therefore no death benefits. She paused for a long time and said “huh…I had not thought about that…I have to think this over some more.” Now I’m not saying she changed her mind but she got the logic loud and clear and had sincerely never considered that basic plain logic before. Maybe because it came from someone very much in favor of rights for donor offspring she was able to digest it.

    • Jennifer Lahl was party to an amicus brief submitted on this case. You can read the brief here: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-159_respondentamcujenniferlahletal.authcheckdam.pdf

      It’s a little odd as amicus briefs go because (in my view) most of the brief is an argument that IVF isn’t such a great idea. While this is a perfectly legitimate view, it’s hard for me to see how it is an argument in favor of the wife/children seeking benefits in the case, but that is the side these amicus are on. I’m not exactly sure why if you think IVF is a very bad idea you come out on the side of the people using it.

      As I think you know, I did pick up on your other point and discussed it in some other comment. Be good if I knew where but I’m not sure at the moment. Anyway, the dependant point wasn’t really raised quite yet in this case. That said, I’ve just devoted some time to reading through the briefs and thinking some more about this and I’ll do a post on the topic later today. But now must go run errands.

      • thanks for getting me that! She was so sweet to say “listen we need to talk because you need to know what your doing” I so appreciated that.

      • “I’m not exactly sure why if you think IVF is a very bad idea you come out on the side of the people using it. ”

        Possibly because they want to stop the practice entirely, so the more egregious and costly and unethical it is, the easier to get people opposed to it. Also, it’s not the kids fault.

        • I get the it’s not the kid’s fault point, and that of course is true. But if you provide social security benefits for postmortem IVF kids then you are actually subsidizing those children, which I think might encourage people to do this or enable people who couldn’t otherwise afford it. That’s why I think it is curious. If there wasn’t social security then some people might think “hey, I cannot afford to have a child using this frozen sperm so I won’t do that.”

  2. marilyn i think it gets tricky because if the wife was pregnant while the husband was still alive, the kid is covered even though it was never actually a dependent

  3. Good point. This is what impelled me to read further on the case. A post will follow. Short answer is that the statute says “deemed dependent” not just “dependent.” The inclusion of the word “deemed” must mean something (that’s a standard principle of interpretation) and so the test isn’t as narrowly actual dependence as you might think. I’ll come back to this–I promise. But I will for the moment just confirm the premise of your argument–typically chlidren conceived in the husband’s lifetime but born after his death are covered.

    • Well then Julie that means implantation of frozen embryos conceived while he was alive would be ok but not the use of his frozen sperm? We are getting really sideways here.
      The idea is that someone who had been relying on income from him is left up a creek without a paddle. The just about to be born child was just about to be claimed on the father’s income tax and in fact might be able to be actually almost for certain.

      Dude dies during the beginning middle or end of some tax year…with me so far? How long is pregnancy? What? How long is pregnancy? 9 months give or take a month, but not 3. Nope you don’t give 3 months. No babies are 3 months over due. If I guy got a woman pregnant during his lifetime the baby would be born no more 10 months later in the same tax year and would be able to be claimed as a qualifying dependent for his taxes that year of the kids birth and his death.

      Ima take a bow now. I really should have gone to college.

      • I think the way the line is drawn is this: .

        If the woman is pregnant when the man dies, there are benefits. That’s because we assume that these people started down the road to the creation of this child thinking the man would be there to help support the child. Perhaps it is not the case–maybe the man knew he was dying. But we’ve made a choice not to do that level of inquiry. There clearly are many cases where it is indeed expected that the man will be around. (And I’m going to include cases where they’ve had sex but the sperm hasn’t reached the egg or the fertilzed egg hasn’t implanted at the time of death, too. In these instances the deed is basically done before death.)

        If the woman takes action to cause the pregnancy after the man’s death (transferring embryo or inseminating with frozen sperm) she does so knowing that he is dead and will not be supporting this child. She can still choose this course of action, but we ahve a society have no obligation to step in for the man’s support, because she chose to proceed knowing he was dead.

        The case you might want to ask about is one where she transfers an embryo or uses frozen sperm thinking (mistakenly) that he is alive. But those won’t be common so I’m not so worried about them.

        Please note that I’m not personally advocating this analysis, just spelling it out. I’m not sure what I think yet. My intial response is that it does make sense, but I haven’t really thought hard enough yet.

        • No I think your going the wrong direction with this because I don’t see this as working on the premise of intention nor do i see it as being based on when the child was conceived because they are not a person until they are born. Remember these children can be conceived during his life and then implanted gestated and delivered after his death. We have to start the clock at birth which may be after his death but if its within the year of his death then he could reasonably have gotten her pregnant while he was alive and again the child would qualify for his military benefits of ss benefits after he was dead

          I really think they asked the wrong question in this case. They are his children they just were not his dependents. Society is not leaving the kids high and dry the mother would qualify for state assistance because she’s the only source of support, their father is deceased.

      • A separate response on the tax question, which is only to say I have no idea how that would work out. I’m not sure I see the problem, but even if I did I wouldn’t know the answer.

  4. Oh on THIS CASE. For crying out loud. No sht? This one. HA! That is so funny. I am so naive sometimes. I really have no idea the caliber of people I’m having dialog with on a daily basis do I professor? In my little cyber buble where I’m equal to the people I talk to. Ha! the opposite of equal is less than and in this case definitely not more. I’ll sit in the corner now.

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