Kelsey Brown has published the article “Posthumously Conceived Children and Social Security Survivors BenefitsKelsey BrownRecommended CitationKelsey Brown, Posthumously Conceived Children and Social Security Survivors Benefits, 13 U. Md. L.J. Race Relig. Gender & Class 257 2013.
Available at: http://digitalcommons.law.umaryland.edu/rrgc/vol13/iss2/5
The article begins as follows:
Imagine this scenario: a recently married couple learned that the husband has a serious form of cancer, and it is extremely likely he would be rendered sterile from chemotherapy. The couple, wishing to eventually have children, decided to deposit and freeze the husband’s sperm before his aggressive treatment begins. Surprisingly, the couple was able to conceive a son naturally while the husband completed his chemotherapy. Unfortunately, the husband passed away before the couple could conceive any more children. After the husband’s death, the wife decided to use the husband’s frozen sperm to conceive another child, as they had always planned. The wife was able to conceive a set of twins through artificial insemination, and she applied for Social Security Survivors’ Benefits for all three children. The wife’s application for the twins was denied because the state where the husband was domiciled at the time of his death did not recognize posthumously conceived children under its intestacy statutes. This created a situation in which only one of the husband’s three genetic children from his legal marriage was able to receive survivors’ benefits. Is it fair that only one of a couple’s three genetic children was recognized by the state as deserving to receive Social Security survivors’ benefits?
The above scenario is based on the factual background of the recent Supreme Court case Astrue v. Capato ex rel. B.N.C. Posthumously conceived children raise a number of questions relating to paternity. The Supreme Court’s decision created even more ambiguity when it granted deference to the Social Security Administration’s (“the Agency”) reliance on individual states’ definition of “child”. While the decision in Astrue v. Capato ex rel. B.N.C. is now controlling precedent, it creates an extremely complicated policy issue with regard to how posthumously conceived children are defined for Social Security survivors’ benefits.