The Supreme Court Meets Frozen Sperm

By Amy Burns, Stanford Law School, JD expected 2012

On November 14, the Supreme Court agreed to hear a case on whether children conceived after the death of their father (with his frozen sperm) are eligible for his social security survivor benefits.

The Case, Astrue v. Capato, was originally brought by Karen Capato, a mother of twins she conceived via in vitro fertilization after her husband died of cancer. (The couple had frozen his sperm before he began cancer treatment.) The question is whether the twins are Mr. Capato’s “children” for purposes of the Social Security Act.
The District Court in New Jersey held that they were not, since the intestacy law of the state where the husband was domiciled at the time of his death, in this case Florida, would not allow the twins to inherit. The Third Circuit reversed, finding it unnecessary to reach that question when there was no dispute as to biological parentage. The Government petitioned for certorari, and the Supreme Court will hear argument, probably in March or April, on which approach is the right one.

The Court will likely treat this question as a matter of basic statutory interpretation. The Social Security Act contains the following relevant provisions:

•402(d)(1): Benefits for “every child (as defined in section 416(e) of this title) of. . . an individual who dies a fully or currently insured individual.”

•416(e): Child means “the child or legally adopted child of an individual.” (Also certain stepchildren, grandchildren, or stepgrandchildren.)

•416(h)(2)(A): To determine if someone is a “child,” the Commissioner “Shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the wage earner was] domiciled at his time of death.”

The main disagreement between the courts in this case was whether the 416(h)(2)(A) analysis (looking to state intestacy law) is mandatory in every case, or whether a court should only look to state law where there is some uncertainty as to parentage. Surely the parties will make the usual sorts of arguments about the text of the statute, the legislative history, the statute’s purposes, and the way the Social Security Administration has interpreted it over the years.

But more interesting is the question of what the “right” answer is – should these children get survivor benefits? Would extending or denying them be likely to change the reproductive behavior of would-be parents? Would denying benefits be discriminating against posthumously conceived children as a class? (Courts thought not, at least in any constitutionally significant way). There is certainly an argument that applying for these benefits is a form of “gaming the system.” Aren’t survivor benefits meant to help support children after an unexpected loss? On the other hand, there’s a note of cruelty in telling Mrs. Capato that her children are not entitled to the same benefits as other children whose parents were both around for conception and birth; hasn’t she lost enough already? And should her children be punished for her reproductive choices?

The Court may or may not give much consideration to these policy questions, but the question remains a fascinating one without an obvious answer.