“After-conceived” child – Child? or Not?

“We, nonetheless, cannot help but observe that this is, indeed, a new world”. Judge Barry, writing for the U.S. Court of Appeals for the Third Circuit, got it right.

Here is the story: Robert and Karen Capato were married in New Jersey in 1999 and like most couples imagined a happily ever after filled with kids and a pretty home. Soon after, Mr. Capato was diagnosed with esophageal cancer. The couple, fearing that the chemo and cancer treatments would affect his ability to have kids, decided that they would freeze Mr. Capato’s sperm so that in vitro would always be an option. In 2001, despite what Mr. Capato was going through, he and his wife conceived naturally and had a son. They wanted more kids, but never had the chance to have any more together because in 2002, Mr. Capato sadly lost his battle against cancer. After her husbands death, Karen Capato put the frozen sperm to use and gave birth to twin boys in 2003.

Up until this point, the Capato story sounds like a very sad, yet very romantic love story. Sad because the couple never got a chance to have their happily ever after, and romantic because Robert and Karen Capato made sure they would be able to create a family together – even after death.

I realize that topics such as in vitro fertilization are controversial and that views on the issue can span the entire moral, religious, ethical, and even political spectrum; however, there is one point I can not imagine anyone disagreeing on: the twin boys are Robert Capato’s sons. Regardless of whether Karen Capato conceived before or after her husbands death, and regardless of whether the conception was natural or via in vitro, those boys are the children of Robert and Karen Capato. Period.

Even though I just finished saying that I couldn’t imagine anyone disagreeing with me on that point, I was wrong. The story continues: After delivering, Karen Capato applied for and was denied her deceased husband’s Social Security survivors insurance benefits on behalf of the twins.
After appealing the the Social Security Administration’s decision, and having a hearing before an administrative law judge (ALJ), the ALJ upheld the agency decision and denied benefits to the twins. According to the ALJ, the twins were not considered the children of the deceased wage earner for the purpose of Social Security survivor benefits. The ALJ’s decision was appealed, and a federal District Court in New Jersey affirmed. How could that be? How is a child determined to be, or rather not be, a child of a deceased wage earner?

The Social Security Act defines “child” broadly as “the child or legally adopted child of an individual”. However further on, the act provides an alternative way to determine whether a child qualifies for benefits. This alternative way requires the agency to apply the intestacy laws of the state where the insured was living at the time he died. Here is where is gets complicated.

Both the ALJ and the District Court decided to take the alternative route and apply Florida intestacy law in determining whether the twins were considered Robert Capato’s children. Why Florida? Because even though the Capato’s were married and the twins were born in NJ, the twins were conceived in Florida, and Robert Capato was living there at the time of his death. Basically ,what this means is that Florida law applies and there, children conceived after the father’s death are not considered heirs unless expressly named in a will. The twins were not named in Robert Capato’s will- hence, they are not his children for Social Security benefits purposes.

You may be asking yourself why in the world the ALJ and District Court would apply the alternative method set out in the Social Security Act when they could have very easily applied the first definition and determined that the twins are Robert Capato’s children because they are his biological kids. That is exactly the view that the U.S. Court of Appeals for the Third Circuit took when reversing the lower court decision. The Third Circuit explained that when a child (whether conceived after the death of a parent or not) is undisputedly the biological child of a deceased wage earner, the child is entitled to benefits. The court further explained that the alternative provision in the act is to be looked to only when there is doubt as to the claimant’s status as a child of a deceased wage earner – which is not the case here because the twins are the biological sons of Robert and Karen Capato.

In this particular case, under these particular facts, I believe the Third Circuit got it right. With that said, I can see how such topics are going to be difficult for the law to accommodate. If there was ever a slippery slope, this is as slippery as they can get. A college friend who donated her eggs not once, but twice, comes to mind. I wonder about how and where the court will draw the line. Should the children produced from her eggs be considered her “children” for the purposes of her Social Security benefits? After all, they are her biological children. Although it will not be an easy task, the law must catch up. It is inevitable.

The Third Circuit in dicta said it better than I ever could.

[A]lthough biological paternity can now be scientifically proven to a near certain degree of probability, modern artificial reproduction technologies currently allow for variations in the creation of child-parent relationships which are not solely dependent upon biology. The use of donor eggs, artificial insemination, and surrogate wombs could result in at least five potential parents. Accordingly, even in modern times, the basic assumption underlying the [9th circuit case relied on] reasoning – i.e., that biological paternity always results in an ‘undisputed’ child-parent relationship – is unfounded.

It is important to mention that although the court determined that the twins were considered Robert Capato’s children for the purposes of Social Security benefits, the court remanded for a determination on whether the children were “dependent or deemed dependent” on their father in order to satisfy the requirements necessary to be entitled to the benefits.



With that said, indeed, it is a new world.