Circuit recently aligned itself with the Ninth Circuit in deciding that for the
purposes of surviving child's insurance benefits under 42
USCS § 402(d) of the
Social Security Act, a posthumously conceived child (i.e. donor
eggs, artificial insemination, surrogate wombs) is a "child" within the meaning
of the Act if parentage is undisputable.
In Capato v. Comm'r of
Soc. Sec., 2011 U.S. App. LEXIS 19 (3d Cir. N.J. Jan. 4, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law],
Karen Capato began in vitro fertilization using her deceased husband's frozen
sperm. After conceiving and giving birth to twins, Ms. Capato applied for § 402(d)
surviving child's insurance benefits based on her husband's earnings record.
The Social Security Administration denied her claim and was later affirmed by
the New Jersey district court. The Social Security Commissioner successfully
argued that under the circumstances, the definition of "child" depended
upon 42 USCS § 416(h)(2)(A)'s "Determination of family status,"
which required application of state intestacy laws.
On appeal, the Third Circuit reversed, holding that an
"after-conceived" child was a § 402(d) "child" if the deceased
wage earner was the child's undisputed biological parent. To accept the
argument of the Commissioner, the Third Circuit held that one would have to
ignore § 416(e)'s plain language and find that a married couple's biological
child was not a "child" within § 402(d)'s meaning unless that child could
inherit under state intestacy laws. Specifically, the Third Circuit stated:
explanation ignores the fundamental question: why should we, much less why must we, refer to § 416(h) when § 416(e)
is so clear, and where we have before us the undisputed biological children of
a deceased wage earner and his widow. The plain language of §§ 402(d)
and 416(e) provides a threshold basis for defining benefit eligibility. The
provisions of § 416(h) then provide for "[d]etermination of family
status" -subsection (h)'s heading-to determine eligibility where a
claimant's status as a deceased wage-earner's child is in doubt. Were it the
case that such status had to be determined here, we would turn to the relevant
provisions of § 416(h). . . . The term "child" in § 416(e) requires
no further definition when all parties agree that the applicants here are the
biological offspring of the Capatos. Stated somewhat differently, we do not
read §§ 402(d) or 416(e) as requiring reference to § 416(h) to establish child
status under the facts of this case.
In so holding, the Third Circuit followed the Ninth
Circuit's conclusion in Gillett-Netting
v. Barnhart, 371 F.3d 593 (9th Cir. Ariz. 2004) [enhanced version / unenhanced version].
However, in limiting its decision to the undisputed
biological children of a deceased wage earner and his/her widow "children,"
the Third Circuit, in dicta, acknowledged that:
[A]lthough biological paternity
can now be scientifically proven to a near certain degree of probability,
modern artificial reproduction technologies currently allow for variations in
the creation of child-parent relationships which are not solely dependent upon
biology. The use of donor eggs, artificial insemination, and surrogate wombs
could result in at least five potential parents. Accordingly, even in modern
times, the basic assumption underlying the Gillett-Netting
panel's reasoning - i.e., that biological paternity always results in an
'undisputed' child-parent relationship - is unfounded.