Justices weigh benefits for babies born after father dies

Posted: March 20, 2012

WASHINGTON - Karen Capato used the frozen sperm of her deceased husband to conceive twins, but the government denied them Social Security benefits as their father's survivors. Her situation, more common as reproductive technology advances, had a mostly unsympathetic Supreme Court grappling Monday with the definition of "child," inheritance law, and artificial insemination.

The case, Astrue v. Capato, had justices trying to shoehorn a 1930s law that gave Social Security survivor benefits to the dependent "child or legally adopted child" of a person into a modern situation in which a man can bank his sperm for use months or years later to produce a child he will never see.

"You want us to sort of apply this old law to new technology," Justice Stephen G. Breyer said to Charles Rothfeld, the attorney for Capato, whose twins were fathered by her deceased husband, Robert. Lawmakers who wrote the survivor benefits law "never had any inkling about the situation that has arisen in this case," added Justice Samuel A. Alito Jr.

But Justice Antonin Scalia said they weren't trying to delve into new technology.

"What is at issue here is not whether children that have been born through artificial insemination get benefits," Scalia said. "It's whether children who are born after the father's death gets benefits."

The twins were born in 2003 through the use of Robert Capato's frozen sperm 18 months after he died of esophageal cancer. Karen Capato's application for survivor benefits on behalf of the twins was rejected by the Social Security Administration, which said that for them to qualify, Robert Capato needed to be alive during their conception.

A federal judge agreed, saying they had to qualify as Capato's children before his death or qualify under state inheritance law as children who could legally inherit.

Florida law expressly bars children conceived posthumously from inheritance, unless they are named in a will. The only beneficiaries named in Capato's will are his wife, their son and his two children from a previous marriage.

The Philadelphia-based U.S. Court of Appeals for the Third Circuit overturned that decision, saying the twins were clearly the biological children of Robert Capato and deserved the survivor benefits. But other federal appellate courts have ruled differently in similar cases.

Scalia questioned whether the twins could have ever been dependents of Capato's, another requirement to get survivor benefits. The law "disfavors children who are born after the father has died, " he said.

But Rothfeld noted that men do die during pregnancies, meaning their children are born after the father's death. "There is no question that children who are born, who are conceived naturally in the marriage and are born after the father's death are deemed to be dependents and receive benefits," he said.

Some justices noted that ruling for the twins could cause all types of problems for Social Security benefits. "What if the Capato twins were born four years after the death in this case?" asked Chief Justice John G. Roberts Jr.

The justices will rule by summer.

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