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Posthumous Conception

<i>Capato v. Astrue</i> puts this issue on the U.S. Supreme Court&#8217;s calendar

In 1968, Denny Zager and Rick Evans had a hit song called, “In The Year 2525,” which foretold, “Ain’t gonna need no husband, won’t need no wife/You’ll pick your son, pick your daughter too/From the bottom of a long glass tube.” Forty years later, that process is a reality, but, according to the U.S. Solicitor General in Capato v. Astrue, the son or daughter you pick ain’t necessarily gonna qualify for survivor’s insurance under the Social Security Act (SSA). The Capato case, which is currently before the U.S. Supreme Court, is another example of the practical legal problems caused by recent advances in human reproductive technology.

Twins Conceived Through In Vitro The facts of Capato are simple. In 1999, shortly after Robert and Karen Capato were married, Robert was diagnosed with esophageal cancer. Concerned that chemotherapy would render him sterile, Robert deposited his semen in a sperm bank for frozen storage. In 2001, Robert and Karen naturally conceived a son. Unfortunately, Robert died in March 2002. It appears that he was a resident of Florida at the time of his death. After Robert’s death, Karen underwent in vitro fertilization using the semen Robert had deposited with the sperm bank. As a result of this process, Karen conceived in January 2003 (about nine months after Robert’s death) and gave birth to twins in September 2003 (about 18 months after Robert’s death). In October 2003, Karen applied to the Social Security Administration for surviving child’s insurance for the twins, based on Robert’s earnings history. The application was denied, and Mrs. Capato appealed.

Under SSA Section 402(d), Robert’s twins qualify for surviving child’s insurance if they’re Robert’s children and if they were dependent on him at the time of his death. Surprisingly, the question before the U.S. Supreme Court is whether the twins are Robert’s “children,” even though everyone concedes that they’re the product of the fertilization of Karen’s eggs by Robert’s sperm. The confusion arises because SSA Section 416(h) provides a means for determining whether an applicant is a child of the deceased, which depends, in part, on state intestacy law. Under Florida law, which would apply to Robert’s estate, it appears that a child must be conceived before the parent’s death to be treated as an heir for intestate succession.

In its decision in Capato, the U.S. Court of Appeals for the Third Circuit decided the obvious: the twins are Mr. Capato’s children. The Third Circuit held that the means set forth in Section 416(h) for determining whether the applicant is a child of the insured are only relevant if that status is in doubt, such as in the case of a non-marital child. Here, there’s no doubt that the twins are Robert’s children, even though they weren’t conceived the old-fashioned way. However, the Third Circuit wasn’t convinced that the twins met the requirement that they be “dependent” on Robert at the time of his death. The U.S. Supreme Court will have the final word.

This isn’t a unique set of circumstances. The Ninth Circuit decided a case with similar facts in Gillett-Netting v. Barnhart. The Ninth Circuit, like the Third Circuit, held that a posthumously-conceived applicant was the deceased parent’s child for purposes of the Social Security Act, but the Ninth Circuit also went on to hold that the applicant’s status as the decedent’s child automatically caused the applicant to be the decedent’s dependent under applicable state law and, thus, also for purposes of the SSA.

Although it seems morally correct, and even logical, to give posthumously-conceived children the same property succession rights as their more timely conceived siblings, those who oppose this approach may be more practical than despicable. Posthumous conception can create many administrative problems that may have no workable solutions unless they’re addressed in the deceased parent’s estate plan. With current technology, for example, it’s possible that probate administration of a decedent’s estate or termination and disposition of a decedent’s trust, could be completed long before the decedent’s youngest child is even a twinkle in the lab technician’s eye.

For these reasons, the Uniform Parentage Act (UPA) Section 707 provides that if a person dies before his genetic material is used in conception, the decedent isn’t a “parent” of the resulting child unless the decedent expressly consented to be a parent of such a child. The comments to UPA explain that this provision is intended to avoid problems of intestate succession that posthumous conception might otherwise cause. “Of course,” the comments say, “an individual who wants to explicitly provide for such children in his or her will may do so.” The UPA has been adopted in nine states.

An introductory comment to Article 7 of the UPA articulates the challenge more broadly:

"[A]bsent legislation there are no clear rules for determining the parentage of a child resulting from a pre-zygote implanted ... after the death of the would-be father. Disposition of such pre-zygotes, or even issues of their ‘ownership,’ create not only broad publicity, but also are problems on which courts need guidance."

Proper estate planning can address many of the legal issues created by posthumous conception. As to the rest, we can understand if the law of property succession has to put some limitations on how late the stork can get started.

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