In a unanimous opinion written by Justice Ruth Bader Ginsburg, the US Supreme Court today weighed in on how the Social Security Act defines "child" for purposes of receiving survivor's benefits when a covered employee dies. Karen Capato was seeking such benefits for twins born 18 months after the death of her husband, Robert. The twins were conceived by IVF after Robert's death using semen he had frozen before this death specifically for that purpose.
Karen claimed the children were entitled to benefits because they inherently met the definition of "child" since they were the biological children of married parents. The Social Security Administration (SSA) looked to a separate statutory provision and ruled that the determination of eligibility rested in state intestacy law; if the children could inherit from Robert if he died without a will then they were eligible for benefits. Under the law in Robert's domicile at the time of his death -- Florida -- children conceived post-death do not inherit without a will, so the twins were not Robert's children for purposes of receiving benefits.
In Astrue v. Capato, the Supreme Court ruled in favor of the SSA. Although I generally favor expansive distribution of benefits and novel claims as to what makes a parent, I found the opinion satisfying on a number of levels. First, Karen's claim was that the children were so obviously Robert's children that it was inappropriate to look at any other part of the statute, including the intestacy test, for a definition. Why was this so obvious? Because, Karen argued, they were the biological children of married parents. I took great pleasure in Justice Ginsburg's criticism of that argument. Karen tried to claim that it was unconstitutional to distinguish between children conceived pre- and post-death, but Justice Ginsburg virtually chastised Karen for arguing that the SSA should "eliminate the intestacy test only for biological children of married parents." (emphasis in original!) Justice Ginsburg clearly did not think highly of Karen asking the Court to distinguish between "children whose parents were married and children whose parents' liaisons were not blessed by clergy or the State."
I also like that the opinion is clear that neither marriage nor biology is necessary to be the "child" of a deceased worker for purposes of survivor's benefits. The opinion specifically cites to statutes that say a semen donor is not a parent to illustrate that "a biological parent is not necessarily a child's parent under the law." As for marriage, the opinion says that "marriage does not ever and always make the parentage of a child certain, nor does the absence of marriage necessarily mean that a child's parentage is uncertain. An unmarried couple can agree that a child is theirs, while the parentage of a child born during a marriage may be uncertain." By explicitly separating the definitions of parent and child from both marriage and biology, the opinion creates space for definitions based on other criteria, including ones that recognize the parentage of children raised by same-sex couples.
The catch is that the SSA will look to the law of each state, and specifically to the state where the deceased worker was domiciled. Within that state, the SSA will look to intestacy law. So the patchwork of laws affecting gay and lesbian families will continue to produce dramatically different consequences across state lines. Of course that's also what happens to other children -- including the twins who were the subject of the Capato case; the opinion cites the statutes of several states that do allow posthumously conceived children to inherit, but Florida -- where Robert was domiciled -- does not.
As for our children, we assume that an adoption decree from one state will get Full Faith and Credit in every state. But will it mean that in every state that child can inherit from the nonbiological parent in the absence of a will? Probably yes. Without an adoption, it will be much more of an uphill climb. When parentage derives from a consent-to-insemination statute in a different state or from a couple's marriage/civil union/domestic partnership elsewhere, the SSA might find that the state would not consider the child to be the deceased's child for intestacy purposes. In that case, bye bye Social Security survivor's benefits. BUT...this is the time for me to remind everyone that the 2008 amendments to the Uniform Probate Code Section 2-120(f) do grant a child the right to intestate succession from a person -- male or female, married or unmarried -- who consents to a woman's insemination with the intent to be a parent. And there is an old doctrine of equitable adoption that allows a child to inherit even if there was no actual adoption. There are some states whose laws are not friendly to same-sex couples and their children, but if those states have the 2008 UPC amendments or a robust doctrine of equitable adoption, a child there may still qualify for SSA benefits.
Also, I want to remind everyone that the SSA has already ruled (and this was in 2007, under the Bush administration) that a child born to a couple in a Vermont civil union is eligible for disability benefits from the nonbiological mother, and the Justice Department has determined that granting those benefits does not run afoul of the Defense of Marriage Act. Here is the opinion letter. And the reason is because the child was eligible to inherit by intestate succession in Vermont, where the disabled worker was domiciled. Period. But had the family moved elsewhere, it would have been that state's law that SSA would look to.
So that the bad news -- and the good news -- in today's opinion.