The Fatherless Child: The Law Struggles to Catch Up to Reproductive Technology

The Court of Appeals for the Third Circuit filed a decision in Capato v. Commissioner Social Security, on July 24, 2013, that highlights the need for a legislative solution in providing benefits under federal programs. The Court held that twins, conceived after the death of their biological father through assisted reproductive technology, were not entitled to Social Security benefits.

The Court reversed a previous ruling in this matter. Social Security legislation enacted in 1939 provided for survivor’s benefits for children of wage earners. The hot-button issue at that time was children born out of wedlock. In the 1960s, children of unwed parents were extended social security benefits survivor’s benefits. The test used to determine if the children were eligible for benefits was whether the children would qualify as heirs of the deceased parent under the laws of the state where the decedent was domiciled at the time of his or her death.

Fast forward to 2013, and a test created in the 1960s operates in an unanticipated manner. In the instant case, the Court ruled that the decedent-father was domiciled in Florida, where state law provides that a child conceived from eggs or sperm of a person or persons who died before the transfer of eggs, sperm or pre-embryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will. Fla. Stat. Ann §742.17(4). The result might have been different if the decedent-father died in another state. If the twins were born within 300 days of the decedent’s death, New Jersey law would presume the decedent-husband was the father.

N.J.S.A. §9:17-43. There is an issue of fairness where two families, with virtually identical facts, could receive a different outcome for purposes of a federal benefits program because of the differences of law in their respective states of residence. Consider the possibility that the class of heirs may never close if eggs and sperm remain available indefinitely to assisted reproductive technology.  Imagine the impact upon the Rule Against Perpetuities, the Generation Skipping Transfer Tax, or estate probate and inheritance.