Thanks to fertility treatment, babies are conceived these days in so many different ways that it can be hard to keep track. Regardless of how they came into being, when they’re born, they’re all children — except when the Supreme Court rules that they’re not.
This week, the court issued a unanimous ruling that should make fertility clinics, advocates, cancer patients and parents who conceived their children via assisted reproductive technology take note: in the case of Astrue v. Capato, the court decided that a set of twins conceived with the help of fertility treatment after their father died of cancer were not eligible for Social Security survivor benefits.
In 2003, the twins were born to mother Karen Capato — 18 months after their father, Robert Capato, had succumbed to cancer of the esophagus. Robert Capato had banked sperm before beginning his treatment to safeguard his fertility; as he grew sicker, he and his wife decided that she should use his sperm to conceive a sibling for their toddler son.
When Karen Capato — as a new widow and a new mother — applied for Social Security benefits for the twins, she was denied on the basis that the law in Florida, where they lived, allowed only children named in a last will and testament to inherit property.
Not having access to the benefits will impact these families,” says Laura Riley, a staff attorney at the Cancer Legal Resource Center, a program of the Disability Rights Legal Center at Loyola Law School. “It discriminates against these children based on the circumstances of their conception.”
The Supreme Court didn’t appear to see it that way, choosing to focus on state law. Karen Capato’s attorney, Charles Rothfeld, said the ruling means that the decision about whether to consider a posthumously conceived child a legitimate heir will now be left to the interpretation of individual states. “It does seem peculiar that federal entitlement to benefits will be governed by state rules,” he says. “There is no uniform rule across the country. The question now is, Will Congress get involved to provide for a unified rule?”
Rothfeld isn’t sure how many children are potentially affected by this ruling, but the number is sure to keep growing as assisted reproduction and fertility preservation for cancer patients increase in popularity. “There are a lot of other children in similar situations,” says Riley.
Julie Shapiro, a law professor at Seattle University who blogs about the intersection of law and family, points out that this is uncharted territory:
It’s only since the advent of the technology that allows for freezing of sperm that you can have posthumously conceived children. And it’s clear that when Congress enacted the existing statutes, it wasn’t thinking about that problem. (The statutes were enacted before the technology existed.)
For the Capato kids, all is not necessarily lost. The case is now going back to the Court of Appeals to determine domicile — where the family is considered to have lived — at the time of Robert Capato’s death. While Florida’s law does not permit posthumously conceived children to inherit, other states have more flexible laws — leaving open the possibility that they could eventually wind up with the benefits that clearly would have been theirs had they been conceived before their father died.