Earlier this year, our U.S. Supreme Court ruled on the legal status of children conceived via in vitro fertilization after the passing of the parent. In Astrue v. Capato, there were twins born 18 months after their father, Robert Capato, died of cancer. Capato’s widow, Karen, unquestionably and successfully used frozen fluid of Decedent for the in vitro process. DNA testing would have confirmed the twins were children of Decedent. Following the twins’ birth, the mother asked for Social Security survivor benefits for the new children, asserting the twins were “children” and therefore should be “survivors” of the deceased worker.
According to the Social Security Administration, children are only entitled to benefits from a wage earner who dies if they qualify for inheritance under state law. In Florida, a child may not inherit through intestate succession unless conceived while the deceased parent was still alive. Basically a child conceived after the passing of the deceased parent is barred from collecting “death benefits.”
When the claim was decided by our highest court, the unanimous opinion by Justice Ruth Bader Ginsburg supported the Social Security Administration’s interpretation of the governing statute. Our highest court ruled the Florida twins conceived through in vitro fertilization which occurred after their father’s death were not entitled to Social Security “survivor” benefits,
“Tragic circumstances—Robert Capato’s death before he and his wife could raise a family—gave rise to this case,” Ginsburg wrote. “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.”
We ask our readers of your thoughts about this concept for the workers’ compensation arena. In the past, we have advised our students there are three types of “children” under IL WC law:
· DNA kids who have DNA that matches that of a parent;
· Adopted children who have legal papers to prove the fact of adoption;
· In loco parentis children who can demonstrate they lived with decedent and were listed as dependents on decedent’s tax returns or otherwise can show dependency.
The Astrue v. Capato ruling sort of confuses the first common sense concept. Please note the DNA guideline we refer to isn’t taken from language in our WC Act—it was a simplification used to assist students in understanding how WC death benefits typically work. There is no question a child born long after the passing of a parent would be a “DNA child” but there is also no chance that child could ever assert they were in any way dependent on the person who froze part of themselves to allow children to be born after their passing.
What do you think the proper outcome should be? Could someone pass and their spouse later have a child or children, requiring the employer to then owe and be required to pay death benefits? Should statutory language be considered to make this outcome more certain? Please feel free to reply on or off the record or post your thoughts on our blog.