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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.


(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), 

(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.