When a Man Dies, Can Children Subsequently Conceived with His Sperm Collect Survivors' Benefits?
A Federal Appellate Court Says Yes

By JOANNA GROSSMAN
lawjlg@hofstra.edu
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Tuesday, Aug. 10, 2004

A young man named Robert Netting and his wife, Rhonda, were trying to conceive a child. But then Robert was diagnosed with cancer - and the chemotherapy, the couple knew, might render him sterile. So before beginning treatment, Robert deposited his sperm for future in vitro fertilization - hoping he and Rhonda could still have children.

Sadly, Robert died of cancer. But before he died, he made clear his intention that Rhonda could still use his sperm to conceive. She did, and ten months after Robert's death, Rhonda conceived twins. Nine months later, the twins - a son and a daughter - were born.

If the twins had been conceived before Robert died, the Social Security statutory scheme would have provided them with survivors' benefits, based on his earnings. Given that they were conceived after he died, should they still get the same benefits?

In Gillett-Netting v. Barnhart, the U.S. Court of Appeals for the Ninth Circuit said yes. This decision broke some new ground - it was the first from a federal appellate court on the subject.

In addition, it and other decisions concerning the status of posthumously conceived children raise important questions. They ask us to consider, in particular, how the law should treat a parent-child relationship enabled by modern medical technology.

As I will argue, this is a question that should be addressed very soon. The number of children conceived after the death of a parent may be small, but it is likely to increase.

Moreover, given the ongoing advances in cryopreservation and reproductive technology, the possible length of time between removal of sperm and insemination may drastically increase. (Experts say a sperm sample, frozen today, will last at least ten years.)

The First Qualification: Was Each Twin a "Child" of Robert?

Under the Social Security laws, to be eligible for a deceased person's Social Security payments, a child must prove he is a legally recognized "child" and "dependent" of the deceased. (The child must also be unmarried, and must either be a minor or a disabled adult; here, obviously, the twins were unmarried minors.)

Undisputedly, Robert was the twins' biological father. Yet the Social Security Commissioner argued that each was not his "child" under the meaning of the Social Security laws.

The Social Security Act's definition of "child" would seem to plainly establish the twins as Robert's children. The Act says a "child" includes a "child or legally adopted child" (or, in some circumstances, a stepchild, grandchild, or step-grandchild). In addition, courts have made clear that in this context, "child" includes the "natural, or biological, child of the insured." Certainly, the twins were Robert's biological children. So one would think they would also be his legal children.

But the Commissioner also pointed to a separate provision of the Social Security laws. That provision specifies that a claimant can be a "child" if he or she would inherit under the laws of intestate succession (those governing the passing of property when someone dies without a will) from the insured in the state in which the insured was domiciled at the time of death. Alternatively, it requires that the claimant prove one of the following factors: the child's parents thought they were legally married, but weren't because of some unknown legal impediment; the decedent acknowledged paternity in writing; there was a court adjudication of paternity; the decedent was under court order to pay child support; or the child was living with and being supported by the claimant at the time of death and there was "other evidence" of parentage.

The Commissioner took the position that Rhonda must prove that her children were either legal heirs of Robert, according to Arizona's intestacy laws, or that they met one of the alternative requirements. She, in turn, took the position that the entire provision applied only to the children of unmarried parents - but not to Robert and her, since they were married. Whether the provision applied was a crucial question - because if it did, the twins would not get benefits.

Why would the provision leave the twins out in the cold? Because, while the Social Security Act says that one can count as a "child" in a number of ways, none of these ways apparently worked for the twins. (Nor would they work for most posthumous children - who would be very unlikely, for example, to have a court adjudication of paternity or a child support order, and who would by definition not live with the insured.)

Fortunately for Rhonda, however, the court held that these provisions did not apply. That ruling was correct. Among the ways one can count as a child, under the separate provision, is to prove that one's parents thought they were married, though they actually weren't. The existence of this option strongly suggests that the alternative provision was intended only to apply to children whose parents are unmarried, but where other factors nevertheless establish paternity.

It also suggests that biological children of married parents fall under the general definition of "child" no matter what (and no matter when conceived). And again, Rhonda and Robert were married.

The Second Qualification: Was Each Twin a "Dependent" of Robert?

Proving "child" status was only the first step for the twins. They also had to prove that they were Robert's "dependents."

Plainly, the twins didn't rely on Robert's earnings, while he lived, for support; they did not exist yet. But under the Social Security Act, some children are considered "automatically dependent." For example, "legitimate" children are automatically considered dependent -- unless adopted by someone else - as the court noted in Netting.

So were the twins "legitimate"? That depended on state law - here, Arizona law. And under Arizona law, "every child is the legitimate child of its natural parents and is entitled to support and education as if born in lawful wedlock." Also, the biological father of a child born using artificial insemination is considered a "natural parent" as long as he is married to the mother.

For these reasons, the court concluded the twins were legitimate. (It noted, however, that under Arizona law, Robert qualified as a "natural parent" - and the twins were "legitimate" - only because he and Rhonda were married.)

Because the twins were "children" and "dependents," they therefore will receive Social Security benefits based on Robert's earnings.

Other Cases Concerning Posthumously Conceived Children

Though the Ninth Circuit's decision clarified this specific legal question, the status of posthumously conceived children still remains uncertain. In this area, the law has not kept up with advances in reproductive technology. (The current state of medical technology makes it possible to take and freeze gametes from men and women for later use.)

Five states have enacted statutes providing that posthumously conceived children may inherit from a deceased parent if he or she left written consent to become a parent. A sixth requires consent and imposes a 3-year time limit from the decedent's death.

Two states have laws expressly prohibiting posthumously conceived children from receiving inheritance or other benefits from the deceased parent.

Aside from these few statutes, most laws governing both parent-child relationships and important benefits like Social Security and inheritance, do not expressly deal with, or even contemplate, the conception of a child after the death of either or both parents. It is thus often difficult for courts to decide how, under these laws, to treat these children.

One approach would be to simply deny these children any legal recognition because legislatures, by and large, have not granted them any. But, in many cases, that would undermine important public policies relating to the establishment of parent-child relationships and the financial support of children.

Courts are thus sometimes left to feel their way through the morass, applying old rules to new situations. For example, in the case of In re Estate of Kolacy, a trial court in New Jersey was asked to consider whether a posthumously conceived child could inherit under the state's rules of intestate (that is, without-a-will) succession.

There, the court noted the state's general policy of allowing children to inherit from their parents unless doing so would intrude on the rights of others, or interfere with the orderly administration of estates. Given that no siblings' rights were at issue, and no estate administration problems existed, the court declared the children "heirs," and they were allowed to share in the estate.

The Supreme Judicial Court (SJC) of Massachusetts considered a similar question. In Woodward v. Commissioner, the SJC crafted a special rule to determine the inheritance rights of posthumously conceived children. At a minimum, it required proof of a genetic tie, and proof of the now-deceased parent's affirmative consent to posthumous conception and to support of the resulting child. The court also left open the possibility of imposing time limitations if necessary in a future case to prevent corruption of the estate process.

A similar case to these has been filed in California.

How Should the Law Treat Posthumously Conceived Children?

The law cannot continue to largely ignore posthumously conceived children. The result of doing so may be that they are unnecessarily impoverished or deprived of adequate parental support--even when resources are available.

If the law does address posthumously conceived children, how should it do so? Social Security and similar benefits questions are fairly straightforward: If a child would have been supported by the parent in life, the child should get benefits based on the parent's earnings in death, as well. The Ninth Circuit got it right, and other courts should follow.

Inheritance questions, however, are trickier. The policy question is how to reconcile competing interests. In many cases, recognizing an inheritance right of a posthumously child will cause no disruption or corruption at all. But there are exceptions.

To give one example, if the surviving spouse indicates the intent to conceive a posthumous child in the future, an estate might have to be kept open - and some of the assets of other heirs held back, for ten years, or even longer. And that might deprive existing children of some needed resources, or a surviving spouse of some earned or necessary support.

To give another example, in some adversarial estate situations, such a rule might also create perverse incentives to have posthumously conceived children. That is, a second husband or wife may conceive a child in order to gain a greater share of the estate -- which might otherwise go to the decedent's children from a first marriage. But remember, that same incentive existed when the decedent was alive - in this instance, it will just continue on past death.

What State Legislatures Should Do Regarding Posthumously Conceived Children

So what, exactly, should state legislatures do?

First, they must update their laws to reflect the wider variety of parent-child relationships that have been made possible through medical technology. Silence on the issue is not sufficient - it should be addressed.

What updates, exactly, should be included? Again, both benefits and inheritance must be considered. And fairness to others - such as siblings -- with competing claims should be a consideration. Massachusetts' rule - which considers genetics, consent, and the complications of time-- is one sensible option. In the end, the rule legislatures adopt is not as important as the fact that there be a rule to deal with these unusual, but real cases.


Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University. Her other columns on trusts and estates and family law, and also on discrimination law, may be found in the archive of her columns on this site.

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