US Supreme Court to decide effect of posthumous conception on benefits

Listen to this article

The U.S. Supreme Court will decide whether children who are conceived after the death of a biological parent are eligible for Social Security survivor benefits when state law denies them the right to an inheritance.

The Court will review a 3rd Circuit decision that the posthumously conceived children of a deceased wage earner and his widow are “children” within the meaning of the Social Security Act.

The plaintiff conceived twins through in vitro fertilization after her husband’s death using sperm that he had deposited at a sperm bank. After the children were born, the plaintiff applied for surviving child’s Social Security benefits based on her husband‘s earnings record.

The Social Security Administration denied her claim, concluding that the twins were not “children” under the Act when taking into account the law of intestacy of Florida, where the husband was domiciled.

But the 3rd Circuit concluded that there was no need to resort to state law when it was undisputed that the twins were the biological children of the plaintiff and her husband.

“Under §402(d) [of the Social Security Act], the child is a ‘child’ as defined in §416(e). To accept the argument of the Commissioner [of Social Security], one would have to ignore the plain language of §416(e) and find that the biological child of a married couple is not a ‘child’ within the meaning of §402(d) unless that child can inherit under the intestacy laws of the domicile of the decedent. There is no reason apparent to us why that should be so,” the court said.

A decision from the Supreme Court is expected later this term.

Astrue v. Capato, No. 11-159. Certiorari granted:  Nov. 14, 2011. Ruling below: 631 F. 3d 626 (3rd Cir. 2010).