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Estate and Elder Law

Third Circuit aligns itself with Ninth Circuit in defining posthumously conceived twins as “children” for purposes of surviving child's Social Security benefits: Capato v. Comm'r (1-4-11)

The Third 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 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:

The [Commissioner's] 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.