Science & Technology Law

Children Conceived with Dead Father's Sperm May Be Entitled to Survivor Benefits, 3rd Circuit Rules


Children conceived by way of in vitro fertilization with their father’s sperm after he had died cannot be denied Social Security survivor benefits simply because the law has failed to keep pace with advances in reproductive technology, a federal appeals court has held.

The posthumously conceived twins in this case are undisputably the man’s biological offspring and therefore fit the definition of “child” within the meaning of the Social Security Act, the Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled (PDF) Tuesday. The only question left to decide when it comes to the issue of Social Security benefits, the appeals court said in a decision reported Thursday by the Legal Intelligencer, is whether the child of a deceased wage earner is dependent or is deemed dependent on his or her father at the time of his death.

The case involved a claim for surviving child’s insurance benefits on behalf of twins born in 2003 to Robert Capato, who died of cancer 18 months earlier, and his widow, Karen, who conceived the children using her late husband’s frozen sperm.

The Social Security Administration denied her claim on the grounds that the twins were not Capato’s children for Social Security purposes, and a federal court judge in New Jersey affirmed the decision.

In its decision, the 3rd Circuit acknowledged that the case presented some difficult legal and moral questions, but none that it found necessary to address given the “discrete factual circumstances” of the situation.

“We, nonetheless, cannot help but observe that this is, indeed, a new world,” Judge Maryanne Trump Barry wrote for the panel.

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