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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Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

Los Angeles

5757 Wilshire Blvd., Suite 645

Los Angeles, CA 90036

Phone:  +1 323 331 9343

Email:  info@iflg.net

Website:  www.iflg.net

New York

501 Fifth Avenue, Suite 1900

New York, NY 10017

Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net

Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.