Iowa Family Law Blog

Astrue v. Capato: When is a child not a child?
May. 23, 2012Mary A. Zambreno, Iowa Family Law Blog
Stork with baby

This article was co-authored by Dickinson attorney Christine Halbrook.

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In Astrue v. Capato, the Supreme Court, in a 9-0 decision penned by Justice Ginsburg, ruled that twins born via artificial insemination to a deceased man’s wife were not eligible for social security survivor benefits.  Robert Capato died of esophageal cancer and 18 months following his death, the twins were conceived using his frozen sperm.  Karen Capato applied to the Social Security Administration for survivor benefits on their behalf and was denied.  The basis for the government’s rejection was that the twins were not his “children” because under state law, they would not have been entitled to inherit in intestacy.

During oral arguments before the Court, the government argued that the Social Security Act provides that every child of an individual who dies a fully or currently insured individual shall be entitled to a child’s insurance benefit.  However, the term “child” as defined in Section 416(e) of the Act means “the child or legally adopted child of an individual,” while Section 416(h) provides that “in determining whether an applicant is the child…of a fully or currently insured individual…the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual…was domiciled at the time of his death.”  This means that if the state of Florida where Robert Capato was domiciled at the time of his death recognizes the twins as his children, then so too would the Administration for purposes of obtaining survivor benefits.  If not, then neither would the government.  Unfortunately for the Capatos, Florida law bars children conceived posthumously from inheritance unless they are specifically named in a will and in this case, the only children named in his will were his son and his two children from a previous marriage.

In Iowa, however, the law is quite a bit different.  Effective July 1, 2011, Iowa Code Sections 252A.3(4),(5),(6), and (7) provides that a child posthumously conceived to parents who entered into a civil or religious ceremony or held themselves out as married in common law is deemed a legitimate child of both parents if:  (1) the marriage was not dissolved prior to the death of either parent; (2) the child was conceived and born after the death of a parent or was born as the result of the implantation of an embryo after the death of a parent; (3) a genetic parent-child relationship between the child and the deceased parent is established; (4) the deceased parent, in a signed writing, authorized the other parent to use the deceased parent’s genetic material to initiate the posthumous procedure that resulted in the child’s birth, or the deceased parent, by a specific reference to the genetic material, bequeathed the genetic material to the other parent in a valid will; and (5)  the child is born within two years of the death of the deceased parent.  Therefore, if the Capatos had been residents of Iowa at the time of Robert Capato’s death, and all of the foregoing requirements were met, the twins would have had a stronger argument of entitlement to the Social Security survivor benefits.

The Capatos argued that in the year that the Social Security Act was passed, the meaning of child was the biological child of married parents.  According to the SCOTUS blog, several justices took issue with this definition.  Justice Scalia rejected the idea that the parents had to be married, while Justice Sotomayor and Chief Justice Roberts argued that Karen Capato could easily remarry and then qualify for survivor benefits because the twins would then be biological children of a married individual.  Justice Scalia and Justice Kennedy had a different take on the case, arguing that even if the twins were deemed his “children,” the Capatos still needed to prove that they were dependent on the wage earner at the time of his death.  In this case, if the twins weren’t even born yet at the time of his death, how could they be survivors and thus, dependents?

Given the relatively new advances in assisted reproduction, this may not be the last case before the high Court involving such modern reproduction technology.

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Mary A. Zambreno




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