23 Mar U.S. Supreme Court to Hear Survivor Benefit Case for IVF Children of Deceased Parents
In vitro fertilization (“IVF”) after the death of a spouse is made increasingly possible due to the fact that the technology exists to freeze gametes and embryos and thaw them later for future use. Posthumous use of IVF is becoming more common due to such factors as pre-planning for military families, those dealing with disease, and clinical advancements in cryopreservation techniques which have increased the potential for a successful pregnancy. However, when single parents approach the Social Security Administration requesting survivor benefits for these children, they are generally declined if the child is not named as a “child” or beneficiary in the decedent’s will. The Supreme Court of the United States will hear one such case this summer.
Karen and Robert “Nick” Capato married in 1999. Tragically, Nick Capato was diagnosed with esophageal cancer shortly after. Instead of just coping with this heartbreaking disease, the couple elected to prepare for their future. Karen and Nick wanted the prospect of conceiving biological children and chose to deposit sperm at a fertility clinic with the intent of conceiving via in vitro fertilization (IVF) at a later date. While they were able to naturally conceive and birth a son during their brief time together, Nick passed away from cancer in March 2002. Just 18 months later, Karen gave birth again, to twins conceived through IVF using her deceased husband’s sperm. While these children are undoubtedly Karen and Nick’s biological children, the Social Security Administration (SSA) questions their entitlement to survivor benefits due to their conception date.
According to the Legal Information Institute (LLI), Cornell University, Karen applied for Social Security survivor benefits promptly after the twins were born. Her request was denied by the SSA. She appealed to the United States District Court for New Jersey, which cited intestacy laws to justify denial of the children’s claim on their father’s Social Security benefits because they were not referenced in Nick’s will.
Karen kept pushing and the United States Court of Appeals took a contrary position, affirming that posthumous children of married couples should be entitled to benefits, which moved Karen Capato’s case to the U.S. Supreme Court. This case and many like it are great examples of the need for government to catch up with changes in family structure and family formation made possible by recent technological advances. Clearly, cancer patients, soldiers, and others faced with fertility issues or life-and-death situations embark on a complex path when considering IVF. Awareness of the legal issues and possible consequences—and ideally the advice of an experienced attorney—along with proper planning, is essential. The U.S. Supreme Court will decide this summer whether Karen and Nick Capato’s twins are entitled to full rights of parentage, a case that may have far-reaching implications for children conceived via assisted reproduction.
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