Is
There Life After Death?
The
Rise of the High-Tech Family
By Judith
Daar
Birth after
the death of a biologic parent has long been regarded as a life-cycle enigma,
blending equal parts tragedy and joy. Historically, postmortem deliveries were
reserved for women whose husbands or partners died during the pregnancy,
leaving no mystery as to the child’s legal status. A child born within a
period of gestation after the biologic parent’s death was considered the
decedent’s child for all intents and purposes. But what about a child
born long after a parent’s death, say, decades later? The modern miracle
of assisted reproductive technologies (ART) makes this clinical scenario
entirely possible, and is prompting us to rethink the definition of family in
its wake.
The
Supreme Court Steps In
This term,
the United States Supreme Court will enter this high-tech family fray,
pondering the existence of life after death. Though sounding in existential
inquiry, the question is more practical than paranormal, plumbing the eligibility
of posthumously conceived children to receive Social Security insurance
benefits as dependents of their predeceased genetic parent. The financial life
of these children, some 100 of whom have applied for support to date, hangs in
the balance. As science triumphs in extending the viability of frozen sperm,
eggs and embryos long after a progenitor’s death, the law struggles to
accommodate newly emerging family structures. For the first time in its
history, the high court will consider the status of children born through ART.
The case at
issue, Astrue v. Capato (1), presents a fact scenario that has become a
template for postmortem benefit claims: the life of a young married couple is
torn asunder when the husband is diagnosed with a fatal disease. Such was the
fate of Robert Capato, diagnosed with esophageal cancer shortly after his
wedding in 1999. Prior to undergoing chemotherapy that was predicted to render
him sterile, Robert deposited several vials of semen at a local Florida sperm
bank. After his death in 2002, Robert’s widow used the sperm in a
successful in vitro fertilization cycle, giving birth to twins eighteen months
after the demise of their biological father. A month after the twins were born,
Robert’s widow applied to the Social Security Administration (SSA) for
surviving child’s insurance benefits based on her deceased
husband’s earnings record.
The SSA
denied the twins’ benefits, reasoning the posthumously conceived pair
failed to qualify as “children” under the Social Security Act. Mrs.
Capato sought a hearing before an administrative law judge who, while noting
the widow presented a “very sympathetic case,” affirmed the SSA
finding. Upon appeal to the District Court, the twins fared no better. All
three decision makers relied on a provision of the Social Security Act that
defers to state intestacy law to define a parent-child relationship. (2) Since
Florida, where the Capatos were domiciled, would not recognize the children as
heirs of their father, the SSA was bound to deny the requested benefits. (3).
Mrs. Capato
appealed to the 3rd Circuit which reversed the lower court, finding that the
twins were the “undisputed biological children” of the deceased
wage earner and thus entitled to SSA benefits. The appellate court relied on a
different provision of the Act, section 416(e), to define “child”
for purposes of the twins’ eligibility. Section 416(e) defines
“child” broadly to include “the child or legally adopted
child of an individual.” Since the twins were the biological children of
the wage earner, no further inquiry into alternative definitions of
“child” was necessary. (4) The court dismissed the intestacy test,
set forth in Section 416(h), deeming it applicable only as a secondary standard
when the child’s status is in doubt.
Capato is interesting not only because it
raises novel legal issues involving posthumously conceived offspring, but
because it displays the import of advancing reproductive technologies by
joining three other federal Court of Appeals decisions involving virtually
identical fact scenarios. The 3rd Circuit case aligns with a 9th Circuit
decision finding children born long after their father’s death to be
children under the federal law, but clashes with cases from the 4th and 8th Circuits
upholding the SSA’s denial of benefits. (5) This even split in the
federal circuits made the case ripe for high court review. In November 2011,
the Supreme Court granted the SSA Commissioner’s petition for certiorari seeking clarification of which Social Security Act definition of “child”
governs these cases.
Surging
Science and Lagging Laws
The legal
issues before the Court in Capato are fairly mundane, focusing on
familiar territory of statutory interpretation and the degree of deference due
federal agency decisions. The justices will likely invoke favored or supportive
canons of statutory interpretation to reach a decision about whether the broad
definition of child set out in Section 416(e) serves as the final destination
for analysis or as a gateway to further deliberation. In either case, the Court
will be interpreting a statute that was not intended to address the facts at
hand. The Social Security Act was enacted in 1935, long before the advent of
sperm freezing and in vitro fertilization. The definitions of
“child” in the Act, though multiple and confusing, knew of only one
world view of a child’s inception—through natural conception
achieved the old-fashioned way.
While the
Court is more likely to focus on the narrow question of whether a posthumously
conceived child’s status under the Social Security Act should be
determined by biology or intestacy, an opportunity for broader reflection
presents. Birth via assisted reproductive technologies may engender novel legal
issues, but ART children are hardly novel in this day and age. Each year,
nearly three percent of births in the United States begin with some type of
ART, creating far more families than the widely accepted practice of neonatal
adoption. By acknowledging the import of ART to today’s modern family,
the Court can pave a path of normalcy and acceptance that has sometimes eluded
ART offspring.
For over
three decades, courts have been called upon to resolve disputes over the legal
status of ART children. The judicial struggle to layer traditional family law
principles atop previously unthinkable parent-child arrangements has yielded
some harsh and regrettable decisions. One trial court judge, who was later
overturned on appeal, declared a child conceived via an egg donor, a sperm
donor and a gestational carrier “an orphan” because the little girl
had no biological relationship to her intended parents. (6) This gaffe was not
committed out of ignorance or discrimination against ART-conceived children,
but rather as an earnest attempt to uphold the plain language of family law
statutes whose enactors never dreamt a child could arise from more than
two—let alone five—individuals. Though many states have enacted laws
to address the rights of ART offspring, too many have not. This breach forces
courts to choose between applying or ignoring ill-fitting laws designed to
address strictly traditional family formation.
The Future
of Postmortem Reproduction
The case of
posthumously conceived children may strike the average observer as exotic and
rare, but the incidence and opportunity for birth after the death of a genetic
parent are gaining momentum. As noted, to date the SSA has fielded around 100
petitions for insurance benefits on behalf of these children, who no doubt join
at least some pool of similarly conceived offspring who have not applied for
federal benefits. With an estimated 500,000 to one million embryos in frozen
storage in the United States, countless vials of preserved sperm, and a
burgeoning market in egg freezing, the number of children born after the death
of a gamete provider is sure to swell.
These cases
raise an additional novel question. In all of the cases decided to date,
including a handful of decisions at the state level assessing whether a
postmortem child is an heir under the state’s intestacy law, the genetic
parent has voluntarily stored sperm for use by his spouse or partner at a later
time. (7) However, what happens if a person dies and gametes are collected and
used without the would-be parent’s knowledge or consent? Should the law
acknowledge the offspring of this nonconsensual retrieval to be a lawful child
of the decedent?
Though the
question of legal parentage has not yet arisen, dozens of news reports
worldwide reveal that spouses, partners, and parents have successfully procured
gametes from loved ones who died suddenly and without explicit instructions as
to their desire for posthumous parenthood. In one particularly difficult case,
the parents of a 17-year old Israeli girl who was killed in a car accident won
a legal battle to harvest her eggs for later use. (8) At such a tender age, the
girl hardly had an opportunity to contemplate who she would take to prom, let
alone whether she wished to become a genetic parent long after her death.
When the
Court considers the Social Security rights of postmortem offspring, it may want
to ponder the import of two principles that are essential to a functional ART
family law scheme—intent and equality. Intent figures prominently into
assisted conception because typically the parties must perform an act they know
can lead to the birth of a child. Depositing semen in a commercial sperm bank
or undergoing in vitro fertilization expresses procreative intent of the gamete
provider or patient. If a decedent deposits sperm prior to death with the
express intent that the material be used after death, his intent for postmortem
parenthood should be honored. A decedent whose gametes are harvested after
death—something clinically possible within a brief window—expresses
no contemporaneous intent to parent, but may have left other extrinsic evidence
guiding a decision about posthumous parenthood.
The equality
principle in ART is less obvious and less discussed, but no less important. The
principle is simply this: ART-conceived children are entitled to the same
rights and privileges as their naturally-conceived counterparts. In the context
of postmortem births, ART offspring rarely receive the same rights as children
born before a parent’s death. About a quarter of all states, including
California, have enacted laws making it difficult for this class of offspring
to secure inheritance and parental rights that flow freely to children
conceived during a decedent’s lifetime. Our probate code accords
inheritance rights to offspring only if the decedent directs in writing that
his or her genetic material be used for posthumous conception, and any child
born as a result must be in utero within two years of a genetic
parent’s death. (9) While offspring conceived during a decedent’s
lifetime – even if the conception is unintended or unwanted – need not
show written proof of their parent’s procreative desire, posthumously
conceived ART children are required to produce “clear and convincing
evidence” to justify their entitlement to basic familial rights.
Looking
Beyond the Supreme Court’s Ruling
This month,
the Court will hear oral arguments in the Capato case. No doubt the
questions from the bench will focus on the language and history surrounding the
word “child” as it appears throughout the Social Security Act. But
the Court also has an opportunity to validate the lives of millions of children
in the United States who have been conceived with medical assistance.
Acknowledging that an ART child’s worth derives not from how or when he
or she joined the family unit, but from being born into that unit, will strike
an equality chord that will resonate widely among those who have relied on
reproductive medicine for family formation.
Yet even if
the Supreme Court sides with the 3rd Circuit and adopts the more
family-friendly view that a posthumously conceived child who is the biological
issue of a deceased wage earner is eligible for SSA benefits, ART children will
continue to face barriers to equal treatment under state inheritance laws. The
typical rationale for limiting succession rights of posthumously conceived
children is the logistical burden associated with protracted estate
administration. While keeping a decedent’s estate open to include
after-born children may pose challenges, the estate bar has adeptly managed
such inconveniences in the past. For example, it took nearly 40 years to close
the estate of Marilyn Monroe. (10) In comparison, most posthumously conceived
children are born within 5 years of their genetic parent’s death.
Urging the
Supreme Court to support the financial life of posthumously conceived children
will also advance equal treatment of ART and naturally conceived children. While
the Court may not address the elusive concept of life after death, its foray
into world of reproductive technologies will bring welcome attention to the
increasing role that medical technology plays in our nation’s family
life.
Endnotes
(1) Astrue
v. Capato, 631 F.3d 626 (3d Cir. 2011), cert. granted, 132 S. Ct.
576 (U.S. 2011).
(2) 42 U.S.C.
§ 416h-2-a provides that the Commissioner, in determining whether an
applicant is a child, “shall apply such law as would be applied in
determining the devolution of intestate personal property by the courts of the
State in which such insured individual . . . was domiciled at the time of his
death.”
(3) See Fla.
Stat. § 742.17, providing “a child conceived from the eggs or sperm
of a person or persons who died before the transfer of their eggs, sperm, or
pre-embryos to a woman’s body shall not be eligible for a claim against
the decedent’s estate unless the child has been provided for by the
decedent’s will.” The Capato twins were not provided for in
Robert’s will.
(4) 42 U.S.C.
§ 416e also requires the child to meet several other factors to be
eligible for social security insurance benefits, including that the child was
“dependent upon the deceased individual at the time of his or her
death.” The court remanded for a determination of this factor.
(5) Gillett-Netting
v. Barnhart, 371 F.3d 593 (9th Cir. 2004); Schafer v. Astrue, 641
F.3d 49 (4th Cir. 2011); Beeler v. Astrue, 651 F.3d 954 (8th Cir. 2011).
(6) In re
Marriage of Buzzanca, 61 Cal. App. 4th 1410 (1998).
(7) See, e.g., Khabbaz v. Comm’r, Soc. Sec. Admin., 155 N.H. 798,
930 A.2d 1180 (2007); Woodward v. Comm’r of Soc. Sec., 435 Mass.
536, 760 N.E.2d 257 (2002); In re Estate of Kolacy, 332 N.J. Super. 593,
753 A.2d 1257 (2000).
(8) Mikaela
Conley, Israeli Court Allows Family to Harvest Dead Daughter’s Eggs, ABC
News Online (Aug. 11, 2011),
http://abcnews.go.com/Health/israeli-family-permission-freeze-dead-daughters-eggs/story?id=14272156.
(9) Cal.
Prob. Code § 249.5.
(10) See Shaw Family Archives v. CMG Worldwide, Inc., 486 F. Supp. 2d 309
(S.D.N.Y. 2007), noting that Marilyn Monroe died in 1962 and her estate closed
in 2001.
Judith
Daar is the associate dean for academic affairs at Whittier Law School, and a clinical
professor at UCI School of Medicine.
This article first appeared in Orange County Lawyer
magazine in the March issue, Vol. 54 No. 3 (pages 16-19). © Copyright 2012
Orange County Bar Association. The views expressed herein are those of the
authors. They do not necessarily represent the views of the Orange County
Lawyer magazine, the Orange County Bar Association or its staff. All legal and
other issues should be independently researched.