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SCOTUS to Consider Posthumously-Conceived Children in Astrue

By Robyn Hagan Cain | Last updated on

While most of our attention this week has been dedicated to the individual mandate challenge, the Supreme Court granted cert on Monday in a Social Security benefits case that has also been generating buzz.

In Astrue v. Capato, the Supreme Court will decide whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that parent under applicable state intestacy law, is eligible for Social Security survivor benefits.

The issue has become increasingly common as artificial insemination has become more prevalent. As the Third Circuit noted, "this is a case where medical-scientific technology has advanced faster than the regulatory process." A Supreme Court decision in the matter can resolve over 100 applications the Social Security Administration has received on behalf of posthumously-conceived children.

The appellate circuits have taken conflicting positions on whether posthumously-conceived children are entitled to the benefits: The Third Circuit, in Astrue v. Capato, decided the answer was a "resounding" yes. The Ninth Circuit came to a similar conclusion in 2004. The Eighth Circuit took the opposite position in August, finding that a posthumously-conceived child was "not the child of a wage earner within the meaning of the Social Security Act."

The facts behind all three of these opinions were similar. In each case, the husband was diagnosed with cancer, the couple made artificial insemination arrangements in anticipation of the husband's sterility, and the husband indicated that the wife could use the semen to conceive in the event of his death.

Could this case reach beyond the realm of federal benefits? Do you think a Supreme Court decision recognizing a posthumously-conceived child's right to Social Security benefits would prompt a change in state intestacy laws?

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