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Should babies conceived after dad's death get benefits?

Rachel Lyons

Progress Educational Trust

08 April 2012

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[BioNews, London]

Last week, the US Supreme Court were still wrestling with the application of a 1930s law to the case of the twins born by IVF, 18 months after their father died of cancer.

Mrs Karen Capato, who used her late husband's frozen sperm to conceive the children, is seeking the twins' entitlement to survivor benefits under US social security laws, as reported on in BioNews 634.

Her application to receive the benefits was rejected by the Social Security Administration which said that for the twins to qualify, Mr Robert Capato needed to be alive during their conception.

However, as Justice Samuel Alito Junior highlighted in court, the survivor benefits law was written at a time when people 'never had any inkling about the situation that has arisen in this case'.

While Justice Stephen Breyer said Mrs Capato's lawyers wanted them to apply an 'old law to new technology', Justice Antonin Scalia said that what was at issue 'is not whether children that have been born through artificial insemination get benefits. It's whether children who are born after the father's death gets benefits'.

In Florida, children conceived posthumously are only covered by inheritance laws if they are named in the will. Mr Capato's will only names his wife, their son and his two children from a previous marriage.

Furthermore, it has been argued that as one provision of the Social Security Act states that a surviving child is one who is 'dependent on the deceased wage earner at the time of [his] death', the twins could not be considered dependents.

A federal judge's decision, which was in agreement with the Social Security Administration, was overturned by the third US Circuit Court of Appeals in Philadelphia, saying that as the twins were clearly his biological children they deserved survivor benefits.

The fact that other federal appellate courts have ruled differently in similar cases, means the Supreme Court have to come to a final conclusion on the situation, which Justice Elena Kagan described as 'a mess'.

Justice Ruth Bader Ginsburg said that in the case of adoption, the child must have completed the adoption process in order for them to receive survivor's benefits if one of the parents was to die.

Moreover, Chief Justice John Roberts noted that ruling for the Capato twins could have further repercussions for social security benefits, asking: 'What if the Capato twins were born four years after the death in this case?'

The ruling is expected in the summer.

© Copyright Progress Educational Trust

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.

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Date Added: 08 April 2012   Date Updated: 08 April 2012
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