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Will SCOTUS Favor Administrative Deference in Astrue v. Capato?

By Robyn Hagan Cain on March 19, 2012 | Last updated on March 21, 2019

The Supreme Court heard arguments today in Astrue v. Capato, regarding whether the Social Security Administration (SSA) should pay survivor benefits to posthumously-conceived children. Currently, the SSA denies benefits to children born more than nine months after a wage-earner’s death.

Based on the justices’ reactions to the oral arguments, there will not be a change in that SSA policy.

Part of the reason is that the Obama administration is opposed to extending benefits in such situations. When a situation falls within a grey area of the law, the Court typically gives “administrative deference” to the government’s interpretation of a law, reports CNN.

"You lose if the statute is ambiguous. Is there any reason we shouldn't conclude based on the last hour that it's at least ambiguous?" Chief Justice John Roberts asked Charles Rothfeld, the appellee's attorney, according to CNN.

In August 1999 -- shortly after Robert and Karen Capatos' were married -- Robert was diagnosed with esophageal cancer, and was told that the chemotherapy he required might render him sterile. The Capatos, wanting children, stored Robert's semen in a sperm bank. The Capatos conceived naturally, and gave birth to a son in August 2001, but they wanted their son to have a sibling.

Robert died in March of 2002. Three months before his death, he executed a will in Florida naming his son with Karen and two children from a prior marriage as his beneficiaries. The will did not mention unborn children although Karen claims that she and her husband spoke to their attorney about including unborn children. In October 2003, Karen applied for survivor benefits on behalf of the twins based on her husband's earnings record. The Social Security Administration denied her claim, and Karen sued.

"What is at issue here is not whether children that have been born through artificial insemination get benefits. It's whether children who are born after the father's death gets benefits," said Justice Antonin Scalia.

Skepticism about extending survivor benefits to posthumously-conceived children spanned across the ideological spectrum on the Bench. Justice Sonia Sotomayor questioned whether children conceived after a biological parent's death would be entitled to benefits if the surviving parent remarried before their birth, while Justice Ruth Bader Ginsburg noted that stepchildren and adopted children would not receive survivor benefits if born 18 months after the wage-earner died, reports CNN.

Posthumously-conceived children debates are becoming more common thanks to artificial insemination technology. Considering the Supreme Court's skepticism about interpreting the law to favor posthumously-conceived kids, it seems like a legislative effort to change the policy will be more effective than a judicial battle.

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