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Supreme Court rules twins conceived posthumously can’t get Social Security benefits

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Twins conceived through in vitro fertilization after their father’s death are not eligible for Social Security survivor benefits, the Supreme Court decided Monday in its first review of “posthumous conception.”

The eligibility decision, Justice Ruth Bader Ginsburg wrote for a unanimous court, depends on whether the offspring are eligible under a state’s inheritance law. And in the case of the twins born to Karen Capato 18 months after the death of her husband, Robert, Florida law does not recognize their eligibility.

The case tasked the court with reconciling modern science with old laws.

“The technology that made the twins’ conception and birth possible, it is safe to say, was not contemplated by Congress when the relevant provisions of the Social Security Act originated (1939) or were amended to read as they now do (1965),” Ginsburg wrote.

The Capatos married in 1999, and shortly thereafter he was diagnosed with esophageal cancer. Because the couple feared that his treatments might leave him sterile, Robert Capato began storing sperm at a facility in Florida.

Robert Capato had children from a previous marriage, and he and Karen Capato had a naturally conceived son in 2001. But as Robert Capato’s condition worsened, the couple began to talk about in vitro fertilization to give their son siblings.

They signed a notarized statement that any children “born to us, who were conceived by the use of our embryos” should be their children in all respects and entitled to their property. But the provision was not included in Robert Capato’s will at his death in March 2002. It provided for his children who had already been born.

After the twins arrived, Karen Capato applied for Social Security survivor benefits. But a judge said the Social Security Act looked to state laws to determine whether the benefit-seeker is eligible to inherit property. In some states, such posthumously conceived children would be covered, but under Florida law they were not.

An appeals court reversed the judge’s decision, saying that state law did not matter. The twins only had to meet the definition in another part of the law, it ruled, which defined an eligible child simply as “the child or legally adopted child of an individual.”

But Ginsburg said the Social Security Administration’s decision to look to state inheritance laws is more in tune with the act’s design to “benefit primarily those supported by the deceased wage earner in his or her lifetime.”

She added: “Tragic circumstances — Robert Capato’s death before he and his wife could raise a family — gave rise to this case. But the law Congress enacted calls for resolution of Karen Capato’s application for child’s insurance benefits by reference to state intestacy law.

“We cannot replace that reference by creating a uniform federal rule the statute’s text scarcely supports.”

The case is Astrue v. Capato .

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