Posthumous Conception: A Case for the Supreme Court

Children conceived posthumously are relatively rare; but as Assisted Reproductive Technologies improve and attitudes about reproductive medicine change, the incidence of posthumously-conceived children is increasing. In addition to the moral and ethical issues that surround posthumous conception, there are financial implications that reach far beyond just the family involved.

Today, The U.S. Supreme Court has agreed to hear an appeal of a ruling by the 3rd Circuit Court for Karen Capato, who conceived twins via artificial insemination after her husband's death and who seeks Social Security benefits for the children.

Capato's husband had his sperm cryopreserved after he was diagnosed with esophageal cancer, ostensibly to start a family. But after his death, his will only only named his three living children (two from a previous marriage and one with Karen) as beneficiaries. No provisions were made in his will for any "unborn children".

Inheritance laws vary by state; in the Capatos' case, the state law will not allow inheritance for children conceived posthumously unless they are named in a will.

The case, Astrue v. Capato, 11-159, is expected to be heard in early 2011, with a ruling by mid-year.

Social Security Takes IVF Dispute to Washington Barbara Leonard Courthouse News Service (CN) - The Supreme Court on Monday took up a Social Security case involving a widow who used her late husband's frozen sperm to conceive twins, born 18 months after their father's death. The 3rd Circuit ruled last year that the twins, B.N.C. and K.N.C., must be considered children under the Social Security Act as the "undisputed biological" offspring of a deceased wage earner, Robert Capato, and his widow, Karen. On remand, a New Jersey federal judge would have to determine whether, "as of the date of Mr. Capato's death, his children were dependent or deemed dependent on him, the final requisite of the act remaining to be satisfied." Social Security Commissioner Michael Astrue petitioned the Supreme Court to review. The Philadelphia-based federal appeals court had nevertheless declined to find an equal protection issue in the case. Robert, who had two children from a prior marriage, was diagnosed with esophageal cancer shortly after marrying Karen in 1999. Hoping to start a family, but knowing that chemotherapy treatment might make Robert sterile, Robert and Karen deposited his semen at a sperm bank. Karen also conceived a son naturally with Robert and gave birth to that child in 2001. When Robert died in March 2002, he named his three children as beneficiaries. The will did not contain a provision for any "unborn children." Shortly thereafter, Karen used in vitro fertilization using her late husband's frozen sperm to conceive twins, born 18 months after Robert's death. The Social Security Administration refused, however, to grant Karen insurance benefits on the twins' behalf. She appealed to the 3rd Circuit after an administrative law judge affirmed.

Additional Links:
Top court to hear in vitro fertilization benefits (Reuters)
Children Conceived with Dead Father’s Sperm May Be Entitled to Survivor Benefits, 3rd Circuit Rules (Abajournal.com)
Children Conceived After Father’s Death Draw High Court Review (Bloomberg)