Sunday, January 11, 2015
Catherine Kim (J.D. 2014, Loyola Law School, Los Angeles) recently published an article entitled, Posthumously Conceived Children and Their Social Security Benefits Based on State Intestacy Law: How Astrue v. Capato Changes Future Social Security Benefits As Technology Advances, 46 Loy. L.A. L. Rev. 1141-1158 (2013). Provided below is a portion of the article’s introduction.
A widowed spouse may have a variety of reasons why she wants to conceive after her spouse’s death. A widow can turn to in vitro fertilization to make “a tribute to one’s deceased partner . . . [, to follow] religious reasons . . . [,] to know the genetic origin of one’s child . . . [, to] produce a full sibling rather than a half sibling . . . [, or] to create a grandchild.” However, a recent U.S. Supreme Court case may impact their decision to do so. Before Astrue v. Capato, courts inconsistently addressed the issue of Social Security benefits for posthumously conceived children under the United States Social Security Act (the “Act”). The Act states that families of deceased workers are entitled to Social Security benefits. Some courts ruled in favor of allowing benefits for posthumously conceived children, while others denied such benefits. In addition, the emergence and increasing use of in vitro fertilization and other assisted reproduction methods have exacerbated the problem of determining a child’s legal parentage, especially when wills omit posthumously conceived children. Courts have, at times, struggled with deciding whether these children qualified under their deceased parent’s benefits when there was no consent to or mentioning of posthumously conceived children under the decedent’s written will or addendum.