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Court: No Benefits For Kids Conceived After Dad Died

The U.S. Supreme Court ruled Monday that that a Florida man's children, conceived after his death through in vitro fertilization, are not entitled to Social Security survivors benefits. More than 100 similar cases are pending before the Social Security Administration, but Monday's ruling is unlikely to resolve most of them.

Karen Capato's husband, Robert, was diagnosed with esophageal cancer in 2000. Fearing that his chemotherapy would leave him sterile, Robert deposited sperm at a fertility clinic before his cancer treatments began. When Robert's condition deteriorated, the couple planned to have Karen use the frozen sperm to conceive after Robert's death so their son would have siblings.

Eighteen months after Robert's death at age 44, Karen gave birth to twins.

As she had with their other child, Karen applied for survivors benefits, based on Robert's earnings and taxes paid under the Social Security system. The agency denied the claim. It contended that under the Social Security Act, eligibility is based on the intestacy laws of each state — meaning whether an individual would qualify to inherit if there were no will. And in Florida, where the couple lived, state law bars inheritance for children conceived posthumously.

Karen Capato challenged the denial of benefits in court, contending that Social Security Administration had misread the statute. She argued that the word "child" is clearly defined in the 1939 Social Security Act as the biological offspring of a married couple, and she contended that the section of the law linking benefits to state intestacy statutes only applies when biological parentage is disputed. A federal appeals court sided with her, but on Monday, the U.S. Supreme Court ruled unanimously against her.

Writing for the court, Justice Ruth Bader Ginsburg said the Social Security Administration's reading of the law, linking it to state intestacy statutes, is "better attuned" to the design of the Social Security statute, which, she said, is to "benefit primarily those the deceased wage earner actually supported in his or her lifetime."

Ginsburg conceded that that the agency's interpretation may not be the only reasonable one, but under the court's long-standing precedent, she said as long as it is reasonable, it is entitled to deference.

Freezing sperm for future use goes back to the early 1960s, says Pepperdine law professor Kristine Knaplund.

"Right about the time we started planning the space program," Knaplund says, "astronauts began banking their sperm partly because we weren't sure if they would come back, and partly because even if they came back we weren't sure they'd still be fertile."

Since then, banking sperm has become far more commonplace for people of childbearing age who have potentially terminal diseases, or for those going off to war.

The Social Security Administration has more than 100 cases pending with claims like Capato's. An unknown number of those were filed by the surviving spouses of military personnel who froze sperm or embryos before deploying.

But unlike Robert Capato, who lived in a state where the intestacy law is very specific for posthumously conceived children, most of these children do not live in a state where the law is clear. Thirteen states have laws that specifically allow posthumously conceived children to inherit in cases where there is no will. Four states, including Florida, specifically do not. As for the rest, it will be up to the state courts to determine what the state law is by determining who is a "child" entitled to inherit under state intestacy law.

In short, in most of the country, this is a question still very much up in the air.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.