Mom ap­peals for sur­vivor ben­e­fits for kids born af­ter dad’s death

The Washington Times Daily - - Politics - BY JESSE J. HOL­LAND

Should ba­bies con­ceived us­ing the frozen sperm of their de­ceased fa­ther get his So­cial Se­cu­rity sur­vivor ben­e­fits?

The Supreme Court grap­pled with that ques­tion Mon­day in the case of Florida twins whose ben­e­fits claim was re­jected by the gov­ern­ment. Their mother used her hus­band’s frozen sperm to con­ceive them af­ter his death.

The case had jus­tices try­ing to ap­ply a 1930s law to a mod­ern sit­u­a­tion where a man can bank his sperm for use months or years later.

“You want us to sort of ap­ply this old law to new tech­nol­ogy,” Jus­tice Stephen G. Breyer said to Charles Rothfeld, the at­tor­ney for Karen A. Ca­p­ato, the mother of twins fa­thered by her de­ceased hus­band, Robert.

But Jus­tice An­tonin Scalia said that they weren’t try­ing to delve into new tech­nol­ogy. “What is at is­sue here is not whether chil­dren that have been born through ar­ti­fi­cial in­sem­i­na­tion get ben­e­fits. It’s whether chil­dren who are born af­ter the fa­ther’s death gets ben­e­fits,” Jus­tice Scalia said.

The Ca­p­ato twins were born through us­ing Robert Ca­p­ato’s frozen sperm 18 months af­ter he died of esophageal can­cer. Karen Ca­p­ato ap­plied for sur­vivor ben­e­fits on be­half of the twins and was re­jected by the So­cial Se­cu­rity Ad­min­is­tra­tion, which said that for them to qual­ify, Robert Ca­p­ato needed to be alive dur­ing their con­cep­tion. A fed­eral judge agreed, say­ing they had to qual­ify as Mr. Ca­p­ato’s child be­fore his death or qual­ify un­der state in­her­i­tance law as a child who could legally in­herit.

Florida law ex­pressly bars chil­dren con­ceived posthu­mously from in­her­i­tance, un­less they are named in a will. The only ben­e­fi­cia­ries named in Ca­p­ato’s will are his wife, their son and his two chil­dren from a pre­vi­ous mar­riage.

The 3rd U.S. Cir­cuit Court of Ap­peals in Philadel­phia over­turned that decision, say­ing the Ca­p­ato twins were clearly the bi­o­log­i­cal chil­dren of Robert Ca­p­ato and de­served the sur­vivor ben­e­fits. But other fed­eral ap­pel­late courts have ruled dif­fer­ently in sim­i­lar cases, leav­ing the Supreme Court to come to a final con­clu­sion.

Some jus­tices noted that rul­ing for the Ca­p­ato twins could cause all types of prob­lems for So­cial Se­cu­rity ben­e­fits.

“What if the Ca­p­ato twins were born four years af­ter the death in this case?” asked Chief Jus­tice John G. Roberts Jr. “. . . So what hap­pens if the bi­o­log­i­cal mother re­mar­ries or some­thing and then goes through this process?”

Jus­tice Ruth Bader Gins­burg pointed out that adopted chil­dren have to be through the adop­tion process be­fore one of their par­ents dies to get ben­e­fits. “There is a time limit for other chil­dren,” Jus­tice Gins­burg said.

And then there’s the dif­fer­ence in state in­her­i­tance laws. Karen Ca­p­ato had tried to ar­gue that they should have been con­sid­ered res­i­dents of New Jer­sey, which has dif­fer­ent in­her­i­tance laws from Florida. The twins were con­ceived in Florida, but dur­ing the preg­nancy, she moved to New Jer­sey.

The jus­tices will rule later this sum­mer.

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