The U.S. Supreme Court heard arguments Monday in a case testing whether children conceived through in vitro fertilization after the death of a parent are eligible for Social Security survivors benefits.
IVF in Court
The case before the court began in 2001 when Robert Capato was diagnosed with esophageal cancer. Before beginning treatments, he deposited sperm at a fertility clinic, and after he died, his wife, Karen, carried out the couple’s plan to conceive using Robert’s sperm.

In 2003, she gave birth to twins and filed for survivors benefits for the children based on her late husband’s Social Security taxes. But the Social Security Administration denied the claim, contending that because the twins could not inherit under Florida state law, where the couple lived, the children were ineligible for survivors benefits.

A federal appeals court in Philadelphia disagreed, saying the 1939 Social Security Act confers benefits on all biological offspring of a married couple.

The Supreme Court’s eventual decision in the case will have an immediate effect beyond the Capato family. More than 100 similar cases are currently pending before the Social Security Administration.

“Increasingly, members of the military — male members of the military before deployment — are freezing their sperm in case something happens and they don’t come back,” says Karen Capato’s lawyer, Charles Rothfeld.

None of that was mentioned inside the Supreme Court Monday, however, as the justices wrestled with how to interpret a law written in 1939 and apply it to modern technology never imagined back then.

The government’s lawyer, Eric Miller, contended that since 1940, the Social Security Administration has determined a child’s eligibility for survivors benefits based on whether that child can inherit under state law.

Justice Samuel Alito noted that the Congress that enacted this law in 1939 “never had an inkling about the situation that has arisen in this case … just as they had no inkling that any state would go off and take away the [inheritance rights] of children born to married people.”

Justice Elena Kagan called the government’s reading of the law “bizarre” in view of the fact that another section of the statute does not apply state inheritance law to stepchildren, grandchildren and even step-grandchildren when determining survivors benefits.

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