When is a child not a child? That’s a question the U.S. Supreme Court was confronted with on Monday, as justices grappled with the increasingly unconventional ways babies are made.
Assisted reproductive technology (ART) is so commonplace that conceiving a child through in vitro fertilization (IVF) is hardly newsworthy these days. Lesbian couples get pregnant using donor sperm and turkey basters. Woman in their 40s use donor eggs, and some rely on surrogates. There are all sorts of ways to build a family, and sometimes tragic circumstances mean babies are born — and conceived — posthumously.
It happened to Karen Capato. In 2003, 18 months after her husband died, Capato gave birth to twins conceived via IVF with his sperm. Karen and Robert Capato had married in 1999; not long after, Robert learned he had cancer of the esophagus. Before he began treatment, he did what more and more people of child-bearing age in his situation do: he decided to preserve his fertility, banking sperm for future use in case cancer treatment left him sterile.
At one point, Robert was doing better and he and Karen ended up conceiving naturally. They had a son in August 2001. But as Robert’s conditioned worsened, the couple planned how to give their son a sibling. Robert in March 2002, but not before putting in writing his intention for his wife to use his sperm to conceive more children.
Here’s where things get tricky: widowed, and with newborn twins and a toddler to care for, Karen Capato applied for Social Security survivor benefits for the twins. The Social Security Administration denied her claim, basing their decision on state law. In Florida, where the Capatos lived, only children named in a last will and testament are eligible to inherit property. But how could a man include in his will children who had yet to be conceived at the time of his death?
“Children who are born after a parent passes away didn’t choose the way they were conceived,” says Laura Riley, a staff attorney at the Cancer Legal Resource Center, a program of the Disability Rights Legal Center at Loyola Law School. “They have a right to be free of discrimination based on the circumstances of their conception.”
Social Security benefits are typically awarded to children of deceased wage-earners provided that the children were dependents at the time of death. How to handle kids not only born but also conceived posthumously? “Congress wrote the Social Security Act in 1939 at a time when no one even remotely contemplated what’s going on now with assisted reproduction,” says Charles Rothfeld, an attorney who argued in front of the Supreme Court on Monday on behalf of Karen Capato. “Had they known this kind of thing would happen, how would they have viewed children of this sort, as eligible for benefits or not? We think they would have intended all natural biological children of a married couple to be entitled.”
Charles Miller, a spokesman for the civil division of the Department of Justice, declined to comment on the government’s case. But the Washington Post reported that the justices “generally sounded disinclined” to rule against the Social Security Administration. In any case, the issues raised aren’t going away. Compelling enough from a legal perspective to have warranted the Supreme Court’s involvement, the subject of posthumous parenting will only continue to get thornier. As Justice Samuel A. Alito Jr. noted, the guys that hammered out the terms for Social Security survivor benefits nearly 75 years ago “never had any inkling about the situation that has arisen in this case.” It’s becoming increasingly common, for example, for soldiers to bank sperm before they’re deployed so that their wives can build a family should they be killed overseas. There are about 100 cases similar to Capato’s pending in the Social Security Administration, according to Kate Waimey Timmerman, program director for the Oncofertility Consortium, a national initiative based at Northwestern University that encourages doctors to consider patients’ fertility before launching cancer treatment. “With an increasing number of young cancer patients choosing to do fertility preservation, you’d imagine the Social Security Administration would also evolve with the times,” says Timmerman.
In the years that this case, Astrue (Michael Astrue is the Social Security commissioner) v. Capato, has wound through the justice system, Capato has remained behind the scenes, protecting the privacy of her children. Rothfeld said she wouldn’t comment for this story, but it’s hard to imagine that this legal fight hasn’t taken an emotional toll. It must have been hard enough to lose her husband; it was an additional blow to hear an administrative law judge decree her twins ineligible for Social Security benefits because they were not Robert Capato’s “child(ren)” in the eyes of the government.
Surely, the kids themselves — now 8 years old — consider themselves their father’s children. Now it’s up to the Supreme Court to see whether it agrees.