Social security benefits for posthumously-conceived IVF children

IVF frequently upends old law that existed before IVF was created. Original laws regarding who is eligible for social security survivor benefits may be a case in point. The 1939 Social Security Act states that Social Security survivor’s benefits go to any child of a covered deceased individual. To further complicate things, social security looks to individual state law to determine inheritance laws and further define child eligibility for benefits.

Enter IVF and the possibility of  posthumous conception.  What is disputed now in at least 100 cases pending in courts is whether a biological child (conceived by IVF  after the death of the covered individual) has the same rights to survivor benefits as a child conceived while the covered individual was still alive.

National Public Radio (NPR) reported on one of these social security cases that was heard on Monday in front of the US Supreme Court.

The Social Security Administration denied benefits to Karen Capato’s twin children who were conceived using frozen sperm from her husband Robert after he died from esophageal cancer. The couple’s previous child who had been conceived before his death was granted survivor benefits by Social Security Administration.

Robert and Karen were wed in 2000 and had one child. Robert was diagnosed with cancer only a few months after they were married. Because he was concerned that chemotherapy treatment would make him sterile, Robert cryopreserved semen before his chemotherapy began. Robert and Karen agreed that they wanted a sibling for their existing child and so before Robert’s death made plans for Karen to use the sperm with IVF to conceive a sibling child. Robert died in early 2002. Karen applied for social security survivor benefits for her existing child who was deemed eligible and provided the benefit.  In 2003, Karen used Robert’s cryopreserved sperm with IVF and conceived twins. This time, when she applied for survivor’s benefits on her twins behalf, she was denied.

The government does not disagree that the twins are also Robert’s biological children, but dispute the claim in part based on state inheritance law in Florida. In Florida,  children conceived after the death of a parent cannot inherit property, unless specifically provided for in a will. Since he died before the twins existed, he could not specifically provide for the twins in a will and therefor, his twins were deemed not eligible for the survivor benefit.

Karen’s lawyer argues that the 1939 Social Security Act simply states that survivors’s benefits are due to any biological offspring of a married couple. Her attorney argues further that the inheritance statutes only become applicable when biological parentage is disputed which is clearly not the case here. Furthermore,  even when children are biologically unrelated to the survivor,  state laws usually do not disqualify them.  For instance, adopted children, stepchildren, grandchildren or even step-grandchildren all  receive survivor’s benefits, making this exclusion of IVF children curious.

The government attorneys argue that IVF children conceived posthumously are different from these other eligible non-biological children because “they were brought into being by a surviving parent with the knowledge that the deceased biological parent will not be able to contribute wages for their support.”

It will be interesting to see what the US Supreme Court decides. Which factor will be considered dominant in determining eligibility for survivor social security benefits: biological paternity, intent to parent, or time of conception?




© 2012, Fertility Lab Insider. All rights reserved.

©2012 Fertility Lab Insider. All Rights Reserved.



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