Tuesday, December 3, 2013
Arianne Renan Barzilay (Assistant Professor, University of Haifa School of Law) recently published an article entitled, You’re on Your Own, Baby: Reflections on Capato’s Legacy, 46 Ind. L. Rev. 557 (2013). Provided below is a portion of the introduction to her article:
Robert (Nick) Nicholas Capato and Karen Kuttner met in the mid-1990s, lived together for a few years, and later married. Shortly after their wedding, Mr. Capato was diagnosed with cancer and was told that chemotherapy “might render him sterile.” The Capatos, however, desired to have children together, and so, before beginning medication, Nick deposited sperm in a sperm bank to be frozen and stored. Despite Nick undergoing “aggressive treatment,” the Capatos were able to conceive through sexual intercourse, and Karen gave birth to a son. Shortly thereafter, Nick's health deteriorated. Still, the Capatos “wanted their son to have a sibling.” However, just a few months later, Nick passed away, leaving a will naming Karen, their son, and his children from a prior marriage as his heirs. After Nick's death, Karen underwent fertility treatments, using Nick's frozen sperm. She gave birth to twins, Brian Nicholas and Kayla N. Capato, eighteen months after their father's death. Soon after the twins' birth, Karen applied for surviving child's insurance benefits under the Social Security Act on the twins' behalf, based on Nick's earning record. Her claim was the basis of the U.S. Supreme Court's recent decision in Astrue v. Capato, and is the focus of this Article. While the case made headline news, there currently is a paucity of scholarship analyzing the case. This Article explores the Capato decision.
Part I discusses the Capato case and the Supreme Court's interpretation of the provisions of the Act at hand. Part II offers a contextual history of reproduction and breadwinning in America. Part III probes into the history of the Act, and especially the provisions at issue in Capato. Part IV analyses the Capato decision in light of the context put forth, offers an explanation of the Court's opinion that is informed by history, and shows how the Court drew the lines of the hetero-family model as, for the most part, still male-dominated. As this Article will demonstrate, the Capato Court's recent embarking into the world of reproductive technologies provides a unique opportunity to discuss the Court's construction of family, family relationships, and power dynamics for the twenty-first century.