Ninth Circuit Decision: Posthumous Children and Social Security Benefits

On May 6, 2009, the Ninth Circuit Court of Appeals held that a child conceived with a man's sperm three years after his death is not eligible for Social Security survivorship benefitsunder California Law.  The sperm was retrieved from the man's body after his death and without any indication that he wanted to father children posthumously. 

The court held that under Ninth Circuit precedent and a ruling from the SSA, a child must prove that the insured was the child's parent, or that the child is both legitimate and  was dependent on the biological parent. 

The court first held the child at issue to be a legitimate child of the man because of their biological relationship.  

Turning to the dependency determination, the court held that it was impossible for the child to have been actually dependent on the sperm donor at the time of his death because she was conceived three years after his death.

The court next held that the California family code focuses on the parent child relationship, never a biological relationship without anything more, to establish "natural parentage" and dependency. 

Finally, the court held that the California Probate Code does not provide a method of intestate succession for children conceived and born posthumously without the deceased biological parent's consent, and therefore, the child could not prove dependency under the laws of intestate succession.

The court also held that it's holding did not present an equal protection violation because it did not exclude all posthumous children from eligibility for benefits, only those who do not qualify.

See Vernoff v. Astrue, No. 08-55049 (9th Cir. June 17, 2009).

As previously mentioned, Mary F. Radford (Professor of Law, Georgia State University College of Law) has posted on SSRN her article entitled Post-Mortem Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows, which discusses the very issue discussed in Vernoff.