Postmortem conception

WASHINGTON-The Supreme Court debated Monday over who counts as a "child" for the purposes of inheritance law and Social Security benefits.

The Social Security Administration sparked the case when it denied survivor's benefits to twins who were conceived and born after their biological father's death. The father, Robert Capato, was diagnosed with cancer and he froze his sperm before his treatment and eventual death in 2002. His wife, Karen Capato, conceived the twins through in vitro fertilization (IVF) in 2003, after her husband's death. She applied for children's insurance through Social Security, but the agency denied her on the grounds that the children were conceived after the father's death, and also on the grounds that the state inheritance law recognized only children at the time of the parent's death. A lower court sided with the Social Security Administration, but then the 3rd U.S. Circuit Court of Appeals sided with the mother.

In Monday's oral arguments, the lawyers and justices debated what federal law means in its definition of a "child," and how to determine that status when many children are born out of wedlock today, as opposed to 70 years ago when the law was written. The lawyer for Karen Capato, Charles Rothfeld, argued that in this specific case, because the parents were married, it was simple to determine under federal law that the in vitro babies counted as children and deserved benefits. The Social Security Administration's lawyer, Eric Miller, contended that the federal agency defers to state laws on the matter of determining who is a child, which would mean that in this case the twins would not receive benefits because they were not listed as dependents when Robert Capato died. Using state laws for such cases presents problems, because in the Capato case, the twins were conceived in Florida, but then the mother moved to New Jersey before they were born.

The case is a twisted knot of issues: how biological parentage translates to legal parentage, both inside and outside of marriage as well as for stepchildren, and how emerging technologies like IVF or those using donor sperm and eggs affect the definition of children. In the case of adopted children in most states, for example, parents must have completed the adoption process before either of their deaths for the adopted children to receive government benefits.

The justices threw all sorts of hypotheticals against the wall. "If you are a sperm donor, does any offspring … qualify?" asked Justice Sonia Sotomayor at one point. The lawyer for the mother said no. Justice Stephen Breyer wondered whether the children would qualify for benefits if the father had written a note before his death saying his future offspring were his children.

Few pro-life groups jumped into the fray. Representatives from the Susan B. Anthony List declined to comment. But Concerned Women for America sided with the mother: "We hope the Supreme Court recognizes, as other circuits have, that all biological children of married parents meet the definition of a child," stated Mario Diaz, the group's legal counsel. "To say otherwise would not only devalue children in legal theory, but, as we can see in this case, it would also have enormous tangible consequences."

The Life Legal Defense Fund was the only pro-life group to file an amicus brief on behalf of the family seeking benefits. The group's representatives noted in the brief that even though they supported the family's claims, the court should consider in vitro fertilization's problems, like the many frozen embryos from the process that clinics often discard.

"Children conceived by in vitro fertilization (IVF) are as much children entitled to love, respect, and protection as any other child," the pro-life group wrote. "In no way should any qualms about the parents' resort to IVF technology justify penalizing the children for the nature of their origin. … This does not mean, however, that IVF is an unalloyed good or that public policy should promote IVF."

But Concerned Women for America's Diaz argued that the main issue should remain that no matter how the child was conceived, a child is a child.