You all know I’ve been following the case of Astrue v. Capato for a long time. There are many past posts. The Supreme Court has now decided the case. Bottom line: on these particular facts, children conceived from frozen sperm after the death of the husband who provided the sperm cannot receive his social security benefits.
The opinion is unanimous but also rather complicated. I’ll give a first read/reaction here, subject to later amendment.
Karen and Robert Capato were married. Sadly, he died just a few years into the marriage. Before he died, some of his sperm was frozen. Nine months or so after his death, Karen used the sperm to create twins who were born 18 months after his death. She sought social security benefits for the children.
Now some baseline background. If the children had been born before Phillip died there is no doubt that they would have qualified to receive benefits. There’s also no doubt that the children would be entitled to benefits if they had been conceived before Phillip’s death but born after it.
It’s only since the advent of the technology that allows for freezing of sperm that you can have posthumously conceived children. And it’s clear that when Congress enacted the existing statutes, it wasn’t thinking about that problem. (The statutes were enacted before the technology existed.)
Karen Capato contended that since the children were biologically related to Phillip, and since she and Phillip were married they were his children within the meaning of the act. Biology and marriage was all you needed. The Court rejected this view. Instead, it sided with the Social Security Administration. The SSA contended that it’s not enough to simply have a biological connection–whether the parents are married or not–the child must qualify as an heir under state intestacy provisions (provisions that govern distribution of an estate where a person dies without a will) or satisfy other statutorily identified alternatives to that requirement.
The Court sided with SSA in part because the agency is entitled to deference–it’s enough that its definition is a plausible one. That’s a technical point I won’t discuss further.
But it’s important to understand the meaning of this ruling. Given the SSA position, Karen Capato didn’t automatically lose. Instead, the question shifted to whether the twins would inherit under Florida law had there been no will. Florida law provided that the twins had to be conceived in their father’s lifetime in order to qualify for intestate succession. They weren’t and so they don’t and so they cannot get the social security benefits. If Florida changed its law or if a different state’s law applied, the outcome could be different.
That means this isn’t a general rule that posthumously conceived children will never get social security benefits. Other states do have laws different from Florida and might provide for intestate succession. In that case, the analysis would move on to another stage–one not addressed here. At that point it seems to me that entitlement will depend on the interpretation of a different provision of the statute–one that requires that the child to have been dependent on the insured at the time of the insured’s death. Just glancing at this you might think it is hard to see how a posthumously conceived child could satisfy this test, but the fact is, we’ll need to wait and see. This issue is not decided in the case.
I’m inclined to agree with the resolution reached by the Court. It’s true that Karen Capato’s argument is simple and straight-forward–she asserted that a child biologically related to both members of a married couple must necessarily be a child of that couple. But you can see that this argument privileges both marriage and genetics. Other children will have to jump through various hoops, but not those of the married, genetically related variety. And of course, I’m not a fan of either of those privileges.
Remember that this isn’t the end of the story–at least, not for posthumously conceived children generally. Two avenues for change are apparent. State law here is crucial and states revise their laws all the time. And the SSA could be persuaded to change its interpretation of the law.
Enough for now. I’ll give it a bit more thought and come back to it if I need to.