One More Look At The Posthumous Conception Case

At the risk of beating a dead horse (something I’ve been known to do) I want to spend just a little more time on the Supreme Court case argued earlier this week.   I’ve commented on the case before but in reading through comments I was finally moved to go and read the briefs.   If you are similarly inclined, you can gain access to them here.

I was struck by the extent to which the dispute between the parties (the Capatos on one side and the social security administration on the other) resembles a conversation that we’ve had repeatedly here.   The core question in the case is what does it mean to be someone’s child.  In other words, who is a “child” of the decedent? 

I think it is fair to say that in the Capato’s view “child” is a word with an ordinary and pre-existing meaning.   (They do cite to a dictionary definition.)  The twins born after the death of Robert Capato are his children because 1) he was married to their mother and 2) his sperm was used to create them.    While I think the inclusion of marriage here is interesting if a little odd, I’m going to ignore it for a moment.   The Capatos argue that the twins are the children of Robert Capato because they are genetically related to him.

By contrast the Social Security Administration argues that whatever “child” might mean in ordinary usage, it is used here as a legal term.   Legal terms have their own special meanings.   So for the SSA the question is what does “child” mean within the relevant statutory structure.  In their view, expressed at the bottom of page 5 of the main brief, the twins are the children of the decedent if they would count as heirs for purposes of intestate succession in the state where the decedent lived at the time of his death.   In these circumstances that means that the twins were Robert Capato’s children only if they could have inherited from him in the absence of a will under Florida law.   They could not and therefore they were not his children.

I don’t mean to go further into the close reading of law or into the question of whether Capato resided in Florida at the time of his death or any of the other detailed questions raised above.   What I want to highlight is something about the general nature of the dispute between the parties.    One side says the word “child” has an obvious meaning that we all know while the other side says that while that may be true much of the time in our lives, in this instance you are talking about law and in law even common terms have their own meanings.

I may not be expressing myself clearly enough but there seems to me to be an obvious echo of extensive discussions here about the meaning of the word “parent.”   On the one hand, as I must concede, “parent” has a meaning (actually multiple meanings) that we all know and use regularly.   There’s a way in which I would never try to deny that Robert Capato is the father (parent) of the twins.

But on the other hand, in law (and I try to keep focused on law) “parent” has a special meaning.   Worse yet, it has different legal meanings in different contexts (just as “child” has different legal meaning in different legal contexts.)

I’ll leave this here with one final note.   There’s was a curious amicus brief filed in the case.  It’s on behalf of a collection of people who care a good deal about many of the issues considered here on the blog.   It’s curious (to me, anyway) because the bulk of it seems to be a discussion of what’s wrong with IVF generally.  This being the case it isn’t clear to me why it is a brief in support of the Capatos (who used IVF).