“On Monday, the Supreme Court heard arguments in a case that asks whether children who are conceived posthumously are eligible for Social Security benefits as 'survivors' of the deceased parent,” said Dena Davis, an expert in biomedical ethics and Lehigh’s first Presidential Endowed Chair in Health. “The issue has divided judges across the country.”
The Court heard arguments in the case of Karen Capato, a New Jersey resident who in 2003 used in vitro fertilization and gave birth to twins, using the stored sperm of her husband, who had died of esophageal cancer before conception.
Capato was turned down for survivor benefits, according to the Social Security Commission, because the children were not heirs at the time of his death and therefore did not qualify as survivors.
“Prior courts—and the Justice themselves—seem divided over a host of issues raised by the case,” said Davis. “Arguments revolve around the application of old and ambiguous law to new reproductive technology, and the definition of ‘survivors.’
“Typical cases involve men whose frozen sperm was used to create embryos after the father’s death,” Davis said, “but as egg freezing becomes more viable, cases could include deceased mothers as well. The Justices’ many questions pointed to the complexity of this seemingly simple issue. Whatever the legal outcome—whether it turns out that these children have a right to the benefits—I believe it is good public policy to provide them these benefits. Children are not responsible for the circumstances of their birth. We should not create two classes of fatherless children based on the circumstances of their conception.”