In Vitro Fertilization, Social Security and Federalism

by J. Wesley Leckrone

Assistant Professor of Political Science, Widener University

Yesterday the United States Supreme Court tackled the issue of whether children conceived via in vitro fertilization after a father’s death are eligible for Social Security.

The case involved twin children conceived by Karen Capato through in vitro fertilization after her husband’s death from cancer.  Her husband had preserved his sperm after being diagnosed with cancer because he feared the cancer treatment would make him sterile. He and his wife wanted to add to their family. However, he died shortly afterwards and his wife conceived the twins about 18 months after his death. (NPR – Nina Totenberg)

Karen Capato applied for Social Security survivor benefits for the twins but was denied.

According to the SSA, children are entitled to benefits from a wage earner who dies if they qualify for inheritance under state law. In Florida [where the Capatos lived at the time of death], a child may not inherit through intestate succession unless conceived while the deceased parent was still alive. (ABA Journal – Debra Cassens Weiss)

In a unanimous decision the Supreme Court ruled that the twins were not eligible for benefits (click to read the text of Astrue v. Capato).  Justice Ginsburg delivered the opinion of the Court and argued that the Social Security Act often defers to state law on family status in determining eligibility for survivor benefits. She stated

Reliance on state intestacy law to determine who is a “child” thus serves the Act’s driving objective. True, the intestacy criterion yields benefits to some children outside the Act’s central concern. Intestacy laws in a number of States, as just noted, do provide for inheritance by posthumously conceived children, see supra, at 12,9 and under federal law, a child conceived shortly before her father’s death may be eligible for benefits even though she never actually received her father’s support. It was nonetheless Congress’ prerogative to legislate for the generality of cases. It did so here by employing eligibility to inherit under state intestacy law as a workable substitute for burdensome case-by-case determinations whether the child was, in fact, dependent on her father’s earnings.

Ultimately the Court used a rational basis test to uphold the Social Security Administration’s holding which allowed deference to state law. Ginsburg argued

Tragic circumstances—Robert Capato’s death before he and his wife could raise a family—gave rise to this case.But the law Congress enacted calls for resolution of Karen Capato’s application for child’s insurance benefits by reference to state intestacy law. We cannot replace that reference by creating a uniform federal rule the statute’s text scarcely supports.

In the grand scheme of federalism cases that the Court will decide on this term (Affordable Care Act, Immigration), Astrue v. Capato lacks much excitement. However, the decision allows states to craft laws on this relatively new topic. According to Justice Ginsburg, five states (California, Colorado, Iowa, Louisiana and North Dakota) have already passed laws allowing children born up to three years after a father’s death to receive benefits. It will be interesting to see if this case spurs more state legislative action on the topic and if a national consensus emerges.


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