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U.S. Supreme Court Debates Federal Definition of a 'Child'

The U.S. Supreme Court on Monday grappled with the federal definition of a "child" under Social Security law in an era of in vitro fertilization and other advances in technology for the conception of children.

While the case has no evident bearing on federal education law, the hour-long arguments in Astrue v. Capato (No. 11-159) did plunge the court into developing areas of state and federal law affecting children, parents, inheritances, and federal benefits.

"Situations like this simply could not have arisen in 1939," when the Social Security Act was amended to provide benefits to survivors, including children, of deceased wage-earners, said Charles A. Rothfeld, the lawyer for a family seeking such benefits on behalf of twin children born in vitro 18 months after the death of their father. "Congress would not have specifically had in mind, contemplated the question of posthumous conception."

The case invovles the surviving family of Nick Capato, who died of esophageal cancer in 2002 at age 44. Capato and his wife, Karen, had one child, and facing his cancer prognosis, the father began donating sperm for possible in vitro fertilazation after his death. Karen Capato gave birth to twins 18 months after her husband's death.

When she applied for Social Security survivor benefits on the twins' behalf, the federal government denied her claim. Both the Social Security Administration and an administrative law judge held that posthumously conceived children must establish that they are eligible to inherit from their parents under state "intestacy" law before they may qualify as "children" under the Social Security Act.

Nick Capato was determined to have died "intestate," or without a will, in Florida, where posthumously conceived children may not inherit from parents who die intestate.

A federal appeals court ruled in favor of the family, holding that to accept the Social Security Administration's arguments, it would have to ignore language of the federal law and hold that the biological child of a married couple was not a "child" within the meaning of the act. The court also noted that certain adopted children, stepchildren, grandchildren, and even stepgrandchildren qualify for survivor benefits under the act, but not those biological children in the Capatos' position.

Eric D. Miller, an assistant to the U.S. solicitor general, urged the justices to defer to the Social Security Administration's interpretation of the statute.

"The question Congress was asking is, what is the class of people who are likely to have a sufficiently close relationship to the insured person such that it would be appropriate to provide benefits to replace the loss of support that they would likely be getting during
the person's life," Miller said. "And if you look at what is the body of law that defines that class of people who have a close relationship with someone, it's state intestacy law. And state intestacy law sets out sort of a clear, easy [way] to apply rules for the distribution of estates."

Chief Justice John G. Roberts Jr. said that with all the "technological advancement" in conceiving children, "There must be circumstances where you can't tell what state intestacy law provides. And what does the Social Security Administration do in that case?"

Miller said the agency does the best it can to interpret the relevant state law, with its decision subject to court review.

Rothfeld, the Capatos' lawyer, said the government's application of the law "disfavors children who are born through, you know, artificial—through assisted means by its incorporation of state law."

Justice Antonin Scalia interrupted. "It disfavors children who are born after the father has died. Which is in accord with the title of the statute: Survivors Benefits. 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 Stephen G. Breyer suggested that Congress was keeping it simple by relying on state intestacy law. He told Rothfeld that he wasn't sure his approach "would save us from even worse problems, particularly when I started looking at the state of the
artificial insemination and so forth, and every state has a dozen different variations; there are uniform acts, there are things you have to acknowledge in writing. It's a very complicated subject."

"Well, Congress wrote a federal definition of 'child,'" Rothfeld said, "and it's not an extraordinary thing for Congress to write a statute that has language that applies in certain circumstances and then the world changes."

By the end of the argument, it appeared likely that the government would prevail.

Chief Justice Roberts told Rothfeld that under prevailing precedents, "you lose if the statute is ambiguous. Is there any reason we shouldn't conclude based on the last hour
that it's at least ambiguous?"

"I think the problem is that we're dealing with new technologies that Congress ... wasn't anticipating at the time," Rothfeld said.

"The reason we think we prevail is that the plain meaning of this statute as was written in 1939, and as it would have been understood by the 1939 Congress that adopted it—was that the actual children of married parents, the paradigm of the situation of the child at that time, would" be eligible for the benefits, Rothfeld said.

A decision in the case is expected by late June.

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