Law and Reproductive Medicine by William S. Singer, J.D.
In May, the United States Supreme Court issued a unanimous ruling in which assisted reproductive technology (ART) was a central feature. In Astrue v. Capato, the mother of two children conceived after their father’s death from frozen sperm challenged the position of the Social Security Administration (SSA) that the children were not entitled to survivor benefits.
The Court ruled that a genetic connection alone to a decedent is not sufficient to qualify for Social Security survivor benefits. Instead, the Court gave deference to the position of SSA that in order to qualify for benefits the survivor must either demonstrate that she/he is eligible to inherit from their late parent under state law or satisfy one of the other requirements under the Social Security laws.
In part the Court reasoned that the Social Security Act is meant to protect family members “against the hardship occasioned by loss of [their father’s] earnings.” The children in this case were born well after their father’s death and were never economically dependent on their father.
Similar to other issues were the law and ART intersect, there are some states which have laws which regulate whether posthumous children can inherit and many which do not.