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The test-tube babies testing the limits of survivor benefits

March 19, 2012 | 11:37 am

Is a child conceived after the husband dies, using his sperm, eligible for Social Security survivor benefits? That's the fascinating question posed by Astrue vs. Capato, a case heard by the Supreme Court
Imagine a husband and wife conceive a child, but before the baby is born, the man succumbs to cancer. Should the baby be entitled to survivor benefits from Social Security, just as the wife and the couple's other children are?

That's an easy one to answer. Under federal law, all the biological dependent children are entitled to share in a deceased parent's survivor benefits, along with any dependent adopted children and stepchildren -- provided that they're not married and younger than 18 (unless they're full-time students, in which case they must be younger than 20, or disabled, in which case there's no age limit).

But what if the child is conceived after the husband dies, using his sperm? Are such children "dependent" on their father at the time of his death, which happened when they were just, umm, potential children?

That's the fascinating question posed by Astrue vs. Capato, the case in which the Supreme Court heard arguments on Monday. A little less than a year after Robert Capato died of throat cancer in 2002, his widow, Karen Capato, became pregnant through in vitro fertilization, using sperm her late husband had frozen prior to undergoing chemotherapy. She gave birth to twins about a year and a half after his death.

Karen Capato sought survivor benefits for the twins, but the Social Security Administration and an administrative law judge rejected the application. The judge held that the twins weren't entitled to any share of Robert Capato's estate under the applicable law in Florida (where the couple had lived), therefore they weren't eligible for survivor benefits.

The U.S. 3rd Circuit Court of Appeals overturned that decision, noting that there was no dispute that the twins were Robert Capato's biological offspring. The appeals court's reasoning was consistent with a handful of decisions in similar cases across the country, but ran counter to several other rulings. The Obama administration appealed, and the Supreme Court is expected to rule on the issue by summer.

It's worth noting that federal law caps the total amount of survivor benefits paid to any family. The Capato twins have three siblings, at least one of whom qualifies for benefits, so the issue there may be more about how the pot is divided than the size of the pot.

But what do you think? Take our ridiculously unscientific poll, leave a comment, or both!

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-- Jon Healey

Photo credit: David Hill / Center for Reproductive Medicine

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