The Supreme Court’s Opinion and the Fine Art of Drawing Lines

I’ve been thinking about the opinion the US Supreme Court issued yesterday–the one about whether posthumously conceived children qualify for social security benefits.   I did a fairly quick review of the opinion yesterday, but there’s surely more to say.   There are layers of questions about what lines are drawn, who draws them, and whether they are permissible.

The children here argued that the line had been drawn in an impermissible way.

“Under the government’s interpretation . . . , posthumously conceived children are treated as an inferior subset of natural children who are ineligible for government benefits simply because of their date of birth and method of conception.”

Brief for Respondent 42–43.  In other words, she asserted that drawing a line between children conceived before the death of the husband/sperm provider and those conceived after his death was impermissible.

Of course, line drawing is often what law is all about.   Determining who gets (and who does not get) benefits is always about drawing lines.   So the simple fact that lines are being drawn is not what makes the process open to question.   The critical questions are about the basis on which the lines are drawn and (sometimes) about the authority of the line-drawer.

With regard to social security benefits, Congress and the Social Security Administration draws the lines.  The law doesn’t require that these lines be perfect or even that they be the best possible set of lines.   The law only requires that the lines be reasonable, non-arbitrary and that they not be drawn on certain impermissible discriminatory bases.

So for example, if SSA ruled out children who were born on Tuesdays, that would be arbitrary and no good.  If they ruled out children born to people of a particular race or religion, that would be discriminatory and no good.   But as long as they don’t draw lines that are arbitrary or discriminatory, it’s probably okay.

One more thing to keep in mind before we go back to the case:  The SSA didn’t actually draw a clear line about actual eligibility of posthumously conceived children that is applied in all cases.   What it did was to say that it will look to state law–the law of the state where the decedent lived at the time of his death.  If under that state’s law the posthumously conceived child would be recognized for purposes of intestate succession, then the child is recognized as a child of the deceased for social security purposes.

In this case, Capato was a resident of Florida when he died and Florida doesn’t recognize posthumously conceived children, so the twins do not qualify for benefits.   If instead, Capato had been a resident of California, the children would have qualified as long as they were conceived within two years of the parent’s death.   (Look at page 12 in the US Supreme Court opinion for the discussion of this.)

Of course, this presents the familiar problem of law varying state to state.   But for better or worse, this is a common state of affairs in our federalist system.   As the Court says on page 11:

Reference to state law to determine an applicant’s status as a “child” is anything but anomalous. Quite the opposite. The [Social Security] Act commonly refers to state law on matters of family status.

It’s not that this choice (to rely on state law) isn’t open to question, but it is a question for another day, I fear.

S0 n0w back to the argument that drawing a line that disadvantaged posthumously conceived children was problematic.     The Court unanimously rejected this argument.   The opinion (written by Justice Ginsberg) is a nice instance of legal reasoning.

The paths to receipt of benefits laid out in the Act and regulations, we must not forget, proceed from Congress’ perception of the core purpose of the legislation. The aim was not to create a program “generally benefiting needy persons”; it was, more particularly, to “provide . . . dependent members of [a wage earner’s] family with protection against the hardship occasioned by [the] loss of [theinsured’s] earnings.”  Califano v. Jobst, 434 U. S. 47, 52 (1977). We have recognized that “where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life and at his death.”

In other words drawing the line at those who can inherit via intestacy is a reasonable choice.  Not a perfect choice–but it doesn’t have to be.   It only has to be reasonable.   It’s not arbitrary, but rather it is related to the goal of the legislation.

Further, there’s nothing suspicious about drawing a line to exclude (some)  posthumously conceived children.

No showing has been made that posthumously conceived children share the characteristics that prompted our skepticism of classifications disadvantaging children of unwed parents.

Since there is no reason to think that the ordinary political process of law-making cannot protect them posthumously conceived children, change must come from the legislatures and not from courts.

Finally, it’s worth taking a moment to appreciate the point raised in footnote 10.

Ironically, while drawing an analogy to the “illogical and unjust” discrimination children born out of wedlock encounter . . . respondent asks us to differentiate between children whose parents were married and children whose parents’ liasons were not blessed by clergy or the State.   She would  eliminate the intestacy test only for biological children of married parents. (Emphasis in original.)

Thus you can see, in the end, that it is all about line-drawing.



14 responses to “The Supreme Court’s Opinion and the Fine Art of Drawing Lines

  1. Thank gd they were logical enough not to screw that up.

  2. My parent's donor is my father

    Julie, would you please help me what this means. I didn’t understand:
    “Ironically, while drawing an analogy to the “illogical and unjust” discrimination children born out of wedlock encounter . . . respondent asks us to differentiate between children whose parents were married and children whose parents’ liasons were not blessed by clergy or the State. She would eliminate the intestacy test only for biological children of married parents. (Emphasis in original.)”

    • I can try.

      Capato argued that genetically related children conceived after death were treated differently than genetically related children who were conceived before death. She asserted that it was unfair to draw this line.

      That’s not a line the Supreme Court has considered in the past so she argued by analogy. She pointed to previous cases where the Court has rejected statutes that discriminate based on the parents’ marital status. (The reasoning is that it is not fair to treat children differently based on conduct of the parents over which the children have no possible control at all.) Capato basically argued that drawing a line based on time of conception was also problematic, just as the line based on marital status was.

      But the Court saw a problem: Under the test that Capato proposed, if the parents were married then any biological child of the husband would have received benefits, no matter when conceived. (No line drawn, therefore no problem.) But given the structure of the statute, you cannot reach that same result for unmarried parents. Thus, Capato’s proposal would privilege married parents as compared to children of unmarried parents. All biological children of married parents would recieve benefits but only some biological children of unmarried parents would recieve benefits. That looks like disparate treatment based on parents’ marital status.

      Given that Capato was complaining about differential treatment, I think the Court thought it noteworthy (and ironic) that she was proposing a test that resulted in the one form of differential treatment everyone (including Capato) agreed was unacceptable from the get-go.

      As the law stands now, all children are treated the same–regardless of the marital status of their parents–and their eligibility depends on when conception occured. Earlier in its opinion the Court concludes that this is an okay line to draw, given the purpose of the statute. I think I commented on that.

  3. My parent's donor is my father

    Thank you Julie. I guess I’m confused because biological children are discriminated against all the time via gamete “donation” (selling) and “surrogacy” (womb selling). The law system is all about the adults intentions, not about the children’s interests necessarily. Including those born out of wedlock. I think it’s all broken but in that context this ruling makes logical sense (ethics aside).

    • I really want to tackle the larger question you raise here–about potential discrimination against biological children (to sort of borrow your phrasing.) This question is raised with some regularity but it needs to be very carefully examined. I actually think this opinion illustrates the care that must be taken. So for example, one needs to start by precisely describing the discrimination. What are the two categories of children and what is the way in which they are treated differently?

      Here, for example, there are those conceived before death and those conceived after death. The former may be eligible for benefits while the latter may not be, depending on where the father lived at the time of his death. The Court sees that there is different treatment but finds it justifiable.

      So what are the categories that you allude to, when do they arise? Framing the question is a huge part of making the argument. Do you want to compare children conceived via ART vs. children conceived via intercourse? Or are there different categories at work here?

      • My parent's donor is my father

        Julie I don’t have the energy to legalize circle talk anymore. You and I simply speak a different language. I identify with the dialect of Kisarita, Marilynn and John Howard (more or less – minus the extreme).

  4. I think I have a just solution: give the kids the benefits, but send the mother to the electric chair, and all the doctors too. Where do people get the idea that its OK to manufacture people like this?

  5. Where do you get the idea, John Howard, that it is not ok? Especially when a biological father consented in writing to using his sperm?

  6. Hello my parents name is donor I love when you come round to comment.

    Donor offspring are discriminated against in the worst way – the kind that results in them being treated as property. That is enormous an not to be overlooked. But I don’t believe that mistreatment of donor offspring comes into play here.

    Firstly the child is not “donor” conceived. He is not trying to qualify as a donor who under the uniform parentage act would not be considered a father. We both know that donor is a legal fiction and so applying for treatment as one does create a frustrating legal fiction but the legal fiction has its own life. You and I know he’s the kid’s father and he could pass a paternity test posthumously if need be. Social security death benefits are for a person’s dependants not their next of kin. It’s only given to the people that were dependant on the deceased as would be evidenced by their tax records within 12 months of their death. If you conceived a child the day you die that child will be born 9 months later and would be able to be listed a qualifying dependent during the year the person was declared dead. If a minor was never dependent upon the deceased parent they don’t qualify. Their parents essentially set them up to not qualify for that. It sucks but they would qualify for money from the state the same as any other child with a parent that is a DEAD BEAT.

    Dead beat is an interesting visual. Going out of your way to make a baby that you will not provide support for is a special kind of lame.

    Also, My Parent’s Donor Is My Father, you may also want to consider this interesting fantasy twist on things: What if the court decided the child’s mother, who is the spouse of the deceased, is not entitled to death benefits either? What if they decided that for all intents and purposes, the sperm is a living cell in her husband’s body being kept on life support while his brain and other cells are no longer functioning. What if they decided to treat him as brain dead not qualifying to be declared completely dead the way they do when people are on life support? What if she could not receive his death benefits until his sperm was verified by an independent third party inspector so that the state would not have to deal with him doing things like reproducing years after he was declared dead. I think the problem here is that his body, or some part of it, is still alive and in service for the benefit of others and so he’s techincally not out of the picture the way brain dead people are technically not out of the picture.

    Unlike a person whose organs may continue living for the purpose of supporting the life of another body, the sperm keeps on living as a representative element of the body it came from – the whole reason for keeping that cell alive is to reproduce the body it came from – its still serving the body it came out of. I think the problem is that technically you might as well be keeping her husbands entire body on life support so she can reproduce with him. What’s the difference other than condencing his body down to once cell saves on space and energy. Sure its more efficient but the end is that he is still alive enough to reproduce maybe he is alive enough not qualify for disbursement of death benefits.
    His kid still would not have been dependent upon him within the 12 months prior to their birth and thus in the same damn pickle. I know my opinion differs from some of my dear friends who testified on this issue. I’ve made a couple of them scratch their heads and say they had not really thought of these things when they formed their opinions originally. Food for thought.

  7. I mean to say that frozen stored sperm should not be shipped to anyone without first getting the written consent of the donor to prove that they are currently living and consenting to allow it to be used to achieve a pregnancy. If that consent could not be obtained every single time the sperm is shipped for use, say because the guy died for instance, then oh well too bad can’t use it. That should go for men who qualify as sperm donors as well as for people who are storing their sperm for their own personal use. If consent cannot be given at the time of insemination or IVF lab procedures then it can’t be used period. There should be no advance directives from the person saying they wish to impregnate someone after they are declared dead. In fact there should be no advance directives in this regard at all because you can want to do something forever one day and changeur mind about it the next and not do it. That is what freedom is about – the ability to change your mind, change your course of action. Certainly people are bound to performance under contracts but every service contract has a clause that talks about penalties for terminating the agreement but people can terminate the agreement. People may own the sperm but they don’t own the body of the person they wish to reproduce with that sperm – reproductive rights are resident with the person being reproduced. Nobody else can buy or be given exclusive rights to reproduce our bodies. That’s slavery too. You can go willingly into that situation but there has to be a legal vehicle out of there. The law says people cannot waive their right to due process or waive their right to freedom in a contract or if they do the law won’t enforce those terms. I think we should put that to the test. I want to see donors withdrawing their consent to reproduce en mass and see what the courts do. See what the banks do.

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