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).


11 responses to “One More Look At The Posthumous Conception Case

  1. I am not versed in this case but my gut tells me that:

    a) he is the father of the twins and should be on the birth certificate

    b) he may not legally be the twins father in the eyes of all the different laws if they were conceived after he was deceased and I don’t have a problem with that.

    c) I agree with Marilyn in the last post comments that a child should be one listed as a dependent for SS to kick in after death, but also take into account that if the father was deceased during the pregnancy would be listed dependent in the last tax return filed for the deceased father. Trying to figure out if all the date scenarios would work for that. But…see d)

    d) If for reasons applicable the father does not claim the child as dependent on tax returns (couple separated and mother gets to claim) but he provides specifically for them (not born but due X date) for them in his will as his dependents then SS should kick in.

    Really tough call – may change my mind but I don’t think children conceived after the death of the father should qualify for death benefits but how to determine the line is a hard one.

    • They would work the dates. If he fathered a child the day he died, the baby would be born no more than 10 months later in the same tax year and as such would be claimed as a dependent on his tax return. Dependent on him in life conceived during his lifetime. The fact that gestation is just shy of a full year and never never longer than 10 months makes the father always responsible for children he fathers. Wow. I mean who thought that up? That’s like magic crazy coincidence. Its almost spooky.

      • Its timed perfectly so that he cannot take responsibility for a conception that takes place after his death. Brilliant.

    • I really appreciate your comment because it helps to identify different contexts in which we need to answer more or less the same question.

      For a), he may well be the father for purposes of being listed on the initial birth certificate. I don’t know where the kids were born (NJ?) or how they determine who goes on the birth certificate.

      For b), this must be right. He cannot, for example, have parental rights like the right to determine the religious upbringing of a child. Only a living person can exercise parental rights of that sort. You cannot require his consent before an adoption. The only question raised in the Supreme Court is the one about whether he is a parent for purposes of figuring out social security benefits.

      For c and d) you could use income tax dependent as a guide/measure. I’d feel more comfortable about this if I knew more about income tax rules. And it would mean a change in law. Right now a child conceived before death but born after gets social security benefits (and I just talked about this in comment on the last post.) Would we want to do away with that?

      Part of the problem I’m having is that it seems to me there do have to be some lines. In theory there could be forty children born over twenty years after the man dies. They cannot all get social security. (You know, it’s a fixed amount split among beneficiaries, so having others come along has lots of problems.) Do we say they must be conceived within a certain time? How long? And whatever we choose (1 year, two years, whatever) what’s the justification? Or do we cap at a number? I’m sort of inclined to think that drawing a line where the woman knows the guy is dead and won’t be there is about as good as we can do.

  2. Marilyn,

    If a baby was conceived in November and the father died in December then that would be the last tax year filed for the deceased right? So no, the child would not have even been born before that years tax returns were due. The only way it would work is if all conceptions were done in the first 60 days of the year the father died in. My brain was tired yesterday.

    • Just thinking about taxes does that to me.

    • no adopted ones a man that gets a woman pregnant can die the day of conception or the day of the birth it won’t matter because there will always be 3 calendar months left in the year and the child would be his dependant no matter what

      on tax years
      Tax Years,,id=98673,00.html

      • While tax is endlessly interesting, I’m not sure it’s really helpful here. That said, I’m not sure I follow this example. If a man gets a woman pregnant in September, 2012, and dies in November, 2012, the last tax return filed for him will be in April 2013. The child won’t be born at that point and certainly cannot be claimed on the tax return that is for 2012. And as he is deceased, he won’t be filing on in April 2014, which is the first year the child can show up on a tax return.

        But we could just decide to stop this here, because what does it have to do with Social Security?

        • The child is your dependent if its born 10 months after your death its not a full calendar year the link to the irs explains the varying types of tax years calendar is a tax year. The child will never be born more that twelve months from your death. This is so totally relevant because thats how the death benefits work they go not necessarily to your children but to your dependents. It goes to people who would have been relying on your paycheck for support

  3. we struggled with this my son died the day he was born. We claimed him as a dependent on our taxes. I mean let them F with me after what I went through.

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