Had she done it while he was alive it may have been different. The kids would have been listed as survivors. I am a lesbian, and I would like to be able to will my benefits if need be, since if I got married, the federal government won't recognize my partner for those benefits. Why does the government get to keep my money just because I am gay.

......and I sincerely hope that changes in the very near future. That your right to marry -- or your spouse's rights in the event of your death -- is even still up for debate makes me sick to my stomach. Nobody is equal & free unless everybody is equal & free.

I hope one day we will be recognized like everyone else.

already exist at the time of the other parent's death, then I would say that the posthumously conceived children would not qualify under that definition.

So I guess it all depends on how strictly you define the term "surviving child?"

The article doesn't say when her eggs were actually fertalized with his sperm. With the GOP currently blurring the line regarding when a person actually becomes a person, what if her eggs had been fertalized before he died (and this is where I show my ignorance on the whole in vitro process, because I have no idea when that actually takes place)?

Understand, I'm not really advocating one way or the other -- as I said, I have mixed feelings -- I'm looking at it from a purely "legal philosophy" perspective, and it is in some ways similar to the custody cases that have been popping up in recent years over frozen embryos and who has a right to them when a couple divorces.

This would play into the right-to-lifers hands.

it's got potential, but not really a whole lot there LOL...

He was dead when she used his sperm. The children did not survive him - he was dead before they were even conceived.

that he would live.

But it doesn't matter. His wife CHOSE to have herself impregnated as a single person after his death. She had no reason to expect that the sperm he deposited would end up becoming eligible for survivor's benefits.

As the mother of a postumously conceived child I need to set you straight about a few things. When my husband donated his sperm, we underwent more that an hour of discussion and counseling. My husband had to sign legal documents giving me ownership of his sperm in the event of his death with the understanding that I could use it to conceive a child. Believe me -when I conceived my son through IVF (a VERY difficult process) shortly after I lost my husband, social security benefits were the last thing I was thinking about. It was actually brought up to me by someone I knew. If you had a child this way, and knew that your husband wanted a child and paid for these benefits, you would fight for your child to have these benefits. Your language is so incredibily offensive I don't even know where to begin. My husband had undergone BRAIN SURGERY 2 weeks before he donated his sperm. We had a tiny window of time to leave ONE sample before he started chemo. He did that for one reason and one reason only - so we could have a child. Survivor benefits were the last thing on my mind when I conceived my child. I wanted to be a mother (my son is my ONLY child) and I wanted to help my husband carry on in the only way he could. Being a widow and the mother of a young child is not easy. Frankly, I expect my son to be denied benefits in my state, and I don't hold out much hope for him if a case like mine goes to the supreme court, but I have to fight for him. That's my job as his mother and if you had a child conceived this way you would do the same thing.

it doesn't change the fact that making a vial of sperm the legal equivalent of a child born before a man's death sets a precedent that threatens Roe v. Wade and even contraception case law. A sperm shouldn't have the same legal rights as a living, breathing human being.

You said it yourself -- after his death, you became the "owner" of the sperm. A dead person cannot own anything. So you are solely responsible for the life you arranged to come into the world, just as you would have been if you bought the sperm from a sperm bank (which also comes from willing donors).

Your husband didn't pay for benefits for children who came into being after his death. He, like everyone else, paid for benefits for any living children who survived him -- not a vial of sperm.

The entire purpose of the sperm sample, was just in case I dont make it.

.....they made the decision together before his death. They had planned to have another child, but then he got sick. Now, this is purely speculation on my part, but they probably didn't proceed with the in vitro while he was still alive, because she wanted to be able to focus her attention on his care vs. caring for a newborn.

Also from the article, Florida (the state they were living in) makes allowances in its inheritance law for posthumously conceived children as long as there is a provision for such children in the deceased's will.........so, since the State recognizes the possibility of further children being conceived after the death of the father when his intentions have been made clear (via his will) -- and, in a sense, legitimizes such children as rightful heirs -- is SSI really that much of a stretch?

only the disposition of his assets are in question, and then only if the will clearly states that. That is completely irrelevant because, in a will, you can leave assets to anyone or any institution that you want.

SSI benefits are not his assets and are governed eligibility rules, That is a big difference,

And it's irrelevant, anyway. A tube of sperm produced before death should not have the same legal status as an actual child -- unless you're against contraception and abortion.

They are no longer around to make decisions about what they want to do.

just my two cents.

People can decide what they want to do with their "body parts" BEFORE they die.

I am all in favor of organ donation.

As for eggs and sperm, etc, I don't feel they should be maintained after death.

But then maybe a rule written in maybe.....1935 needs to be updated.

and even if I did, after my spouses death, use embryos that were frozen or sperm that were frozen, I would NEVER have thought to apply for SSI for any resulting kids.

To me, that's just common sense.

If she was pregnant before he died - then I'd say OK. But, she made the decision to be a single parent to those new babies. Single parents don't have SSI to help them out.

gaming the system.

There were millions of persons that were frozen. And used to create another human. Yes she's entitled....

are the legal equivalent of living, breathing human beings?

That's a dangerous road to follow .. .

I don't understand why were at this point.......

All that existed prior to the man's death was some sperm in a vial (and his older child). So unless you believe that the sperm and the older child should have the same legal status, I don't understand why you'd would say she should be entitled to SSI for the twins she conceived post-mortem, in addition to the older child.

and you can go further w/this stuff if you wanted.....bottom line, wish I could leave this planet....can't take it anymore.....

I can't get my thoughts past that little tidbit.

SSI stands for Supplemental Security Income. It is a program for low income disabled and elderly people. What is being talked about here is Social Security Survivors benefits. At the time I retired a year ago from working for SSA, this was still in the courts and benefits were being denied. Personally, I think that the child should get benefits regardless of being conceived in vitro or in vivo. I see no difference between a man depositing sperm in vivo before his death and depositing it in a test tube which is then used to fertilize and implant an egg. The child is still the biological child of the father.

some possibility, no matter how small, that he may eventually be able to help support the child.

If he is dead, there is zero chance; and the woman knew this when she chose to go ahead and have the procedures.

Survivors benefits are for someone who was a dependent before the death of a person -- not for someone intentionally conceived by a single parent after the death.

There should be no legal difference between the DNA in sperm he deposited before his death and DNA in the living, breathing child he left at his death.

Both should deserve the same legal protections.

And it had been used to produce a dozen babies after his death.

Should they all have been eligible for survivor's benefits?

After all, DNA is DNA.

Recipients of donated sperm specifically sign off on receiving any benefits from the anonomys donor. A man who donates sperm with the intention of creating a child with his partner is doing a very different thing. The child he helped to create is his child. I'm afraid we will just have to disagree on this one.

He had the sperm frozen years before, when there was still hope that he would survive.

And, even so, the pregnancy would not have occurred if the mother hadn't made the sole decision to arrange for the insemination.

She, and she alone, is legally responsible for the birth -- just as it would be her sole choice to have an abortion. A dead person can't be legally responsible for anything.

Some folks on this forum seem incapable of imagining the situation I found myself in or how and why it is VERY different than almost any other.

I am just against anything that takes food away from babies and I am for anything that gets them food and clothing and shelter. If I had my way all kids would have food, shelter, clothing and healthcare until they (or their parents) can provide it themselves no matter what.

As far as I am concerned the question should only ever be "Did you get enough to eat?" Who is paying for it can be worked out later. Stomachs don't give a shit what the law says.

They didn't ask to be born, and are more than "Our future" or a resource. They are living, breathing and helpless to fend for themselves.

Personally I think it's barbaric to banter over if they get their needs met.

I agree. I just don't think Social Security was created for this type of scenario. I am a little tired of paying for people's selfish choices. Much like the woman who refused to purchase health insurance, went bankrupt, and still advocates for not purchasing health insurance. Shit like this gets old.

Widowed mother here (hello ). You are in no fucking way whatsoever paying for my children. Their father, my husband, paid into his Social Security via taxes (in a rather high bracket, as well), thank you very much. You can now rest your mind and don't ever make a suggestion again that you are somehow responsible financially for the care and feeding of my child.

Widowed mother of a postumously conceived child agrees!

arranged for the conception if she couldn't afford to take care of any baby that resulted?

If she can't, then wouldn't she be eligible for the same aid that any other indigent mother can apply for?

Ah, the joy of in-laws.

should have the same legal status as actual children conceived before death would be a very bad precedent to follow. Unless you're a radical anti-contraception pro-lifer.

This is my first time posting here, though I've been a long-time lurker...

My daughter's father died a week before her third birthday. We were not married, but we'd lived together for four years; she had his last name and of course, he was on her birth certificate. There was no question of her paternity or the fact that he had raised her from birth; however, I had to find written proof of him acknowledging her as his daughter in order to receive SSI benefits. Luckily, when he had applied for health insurance for us, including his 3 children, he wrote "my son ______, and my daughters, ______ and ______.

So basically, parentage does not matter. Even raising a child is not enough. There has to be proof that you acknowledged the child as your own.

Whether it should be that way or not, I don't know. But it is their standard protocol, therefore I think a child being conceived post mortem would not qualify.

We have documentation from our fetility clinic that my husband intended to father our child. Sorry, you're incorrect.

Or was the BC not signed?

Parent--only one--which I signed, physician, and registrar. I even looked back on my own certificate which is from almost 50 years ago, it too only had room for one parent, and my mother signed it as well.

There was plenty of proof that he was her father. He had claimed her, as his daughter, and me both on his taxes, since she was born. (He was able to claim me under head of household.) But for some reason that wasn't enough. They wanted written proof of him calling her "my daughter." I agree it sounds strange, and I thought so at the time. But I remember searching through documents, birthday cards, etc., looking for something. Had social media and emails and such been around then, there would have probably been plenty of documented instances, where he talked about his daughter or his kids. But in '92, that was not the case.

sperm deposited before his death should have the same legal rights as the existing child that he left at his death?

That sperm should have the same legal status as a human being?

I'm not comfortable with that precedent.

Where did you get that?

Go all the way back to the subject line of the OP. That's the questions I was answering. And we were talking about a child. Not a fetus. Not an egg. Not a sperm. A living breathing human child.

Why do think these two are entitled to survivor benefits considering that they didn't survive their father?

Why not answer the question? Why are they more deserving than the millions of other children born that year?

whose have a deceased parent?

The biological child of a parent who dies ordinarily is entitled to survivor's benefits. Are you suggesting that there are there millions of children out born every year who lose a parent and don't qualify for such benefits? I think, if I understand your position, you don't object to children qualifying for benefits if they were conceived while the father was alive (either through in vitro or otherwise). So why single out these children for fewer benefits than any other child might qualify for?

For the record, my view on the case is that it raises interesting questions of law. If it was up to me, I'd probably rule against extending benefits in this case based on the absence of any evidence that Congress intended to cover such a situation (not surpising since Congress undoubtedly didn't even imagine the possibility of such a situation when it enacted the law). That doesn't mean that Congress couldn't and may be should go back and amend the law to cover posthumously conceived children (with or without whatever exceptions, requirements, safeguards etc. that are deemed warranted as a matter of public policy).

The wife was the one who arranged for the conception of the child after the man's death. If she hadn't wanted to go through the pregnancy as a single mother, it wouldn't have mattered what he had "planned." (And I haven't seen any evidence that he planned this, by the way. He stored the sperm while there was still hope that he would survive.)

All he did was deposit some sperm and have it frozen.

Why should the state treat that frozen sperm as the legal equivalent of the child he had before his death?

I know that the Catholic Church and other anti-contraception people would; but I'm surprised to see that sentiment here.

Whatever the parents decided, the children deserve it.

Or otherwise "deserve" it?

once you start treating a sperm stored before death as the legal equivalent of a baby. . . which is what the mother in this case basically wants.

but conceived while the father is alive? Aren't you treating an in utero fetus the same as a baby carried to term and delivered prior to the father's death?

You're right, it's a good question. I haven't read legal opinions on this, but I'm sure they're out there.

how many kids, with how many women, over how many decades?

As a thought experiment, lets just say the guy had a few quarts of it frozen over time. Since there are quite a few swimmers per cc, he could in theory be the posthumous biological father of 100's of kids. Do they all get his SSI? Decades later, do they jusr keep applying? If not, why not, and where do you draw the line?

In modern context, the actual death of the father is probably the right place.

It is an aberration. Not a problem. Yes "posthumously conceived children" have all the rights and entitlements as other children. If and when this is an actual threat to the solvency of the system, adjustments could be made.

he died, then we're setting a dangerous precedent -- and I'm not talking about the money involved. I'm talking about deciding that sperm -- potential human life -- should be legally equivalent to a human child. And that's what the woman is proposing in this case.

When the man died, all he left behind was one child and a vial of sperm -- not three children. Those sperm are NOT the legal equivalent of human beings, at least, not under Roe v. Wade.

A dead person cannot own property, so after his death, those sperm became the property of his wife. It was only after they were her property that she decided to be inseminated and make a baby. She then is the sole person responsible for the birth, just as she would be if she had bought the sperm at a sperm bank. The DNA is irrelevant. So is whether he did or did not "plan" to have her use the sperm after his death. All that existed at the time of his death was one living child and a vial of sperm -- and they are not equivalent.

I wouldn't imagine everything else could be postdated, too. Interesting legal case.

It's not the slippery slope that gets me, I don't even have to go that far. Conceived after death? Nope. What if the wife decided after his death to donate the unused sperm to her three friends who were having trouble getting pregnant. They all conceive. By this reasoning, every single one of the children would be entitled to benefits. DNA doesn't qualify for benefits, no matter what the intention.

I can just see the sperm bank ads: Sperm Available for Fertilization: Dad Dead, Get a Baby PLUS SS Benefits!

Just no way.

therefore, we don't know what his "true" intentions were. He may have changed his mind during his final days and said "no" that he didn't want her to do it after he was gone, and then she did it anyways. We'll just never know, but legally you can't be held accountable for things due to your "intentions" just for your actions, and he was dead when the kids were conceived/born so they should not be eligible for SSI.

Not SSI. SSI is available to everyone if they meet eligibility requirements.

For SSA, it's a bit tricky. What if a baby was conceived the 'normal' way but is born after the father dies? I'm sure they are still covered but I would think the line could be drawn at point of conception so I would say a baby would not be eligible for SSA if they are conceived after a father's death.

Lots of parents "plan" to have their babies born before jan 1, so they can claim a deduction for the whole year, and even though the due-dates indicate they should have the baby before Jan 1, many pesky little rascals stay put until Jan 1 or later.

The law is pretty specific..even though they planned to have the baby sooner, they still get no deduction..

Born to/son-daughter of, means in utero or actually born..not just "planned".

While I understand her desire to have a child after his death, she should not expect to claim survivor's benefits for the child (not yet conceived) before the death.

This sort of thing needs to have some actual law regarding what's legal & binding, and what's not, since so many people are using in vitro, and more and more young people seem to be getting cancer (and may want to do something similar in the future)

I believe time of conception would have something to do with it regarding SSA benefits. (Not SSI.)

As in my example, a father dies after the child is conceived but before the child is born.

I could be wrong and I'm sure the rules have changed since that previous life.

conception.

To avoid slippery slopes, it would seem a child need be born at the time of the parents death to get benefits.

Granting these rights to fetus at any stage of development would seem to be a problem.

I am the mother of a child conceived after my husband died. We planned for this child; my husband donated his sperm specifically to leave to me so that we could have a child. I did not even think about the social security benefits until after my child was born and someone asked me about them. I am currently appealing a denial in my own state and may or may not actually make it back to court depending on the Supreme Court ruling. When you do a will, you can leave property and other inheritance to grand children that are not even conceived yet, so why should my child be denied the benefits that his father paid in to his entire life and would want his son to have? For me, I feel like my son is being discriminated against because of the way he was conceived. My husband had to give me legal rights to use his sperm in the event of his death (he had brain cancer) and so he obviously consented to this child. I'm always surprised at the level of hostility from some people about this issue. There is only a hand full of children in this country conceived this way and that will always be the case. It's not as if giving them the social security benefits they deserve and their father's provided for them is going to increase the national debt or create a hardship for tax payers. I see denying these children what is rightfully theirs as discriminatory and, frankly, misogynistic. My child was not conceived through use of some anonymous sperm donor. He had a father who wanted him and would want him to have these benefits.

Very interesting situation. Had not thought of it terms of a "will"...

I wish you well in this struggle.

by giving a vial of sperm left upon a man's death the same legal status as a baby.

I'm not trying to get social security benefits for my husband's sperm. I'm asking for them for my CHILD. If you don't know the difference, I'm not sure what more I can add.

if you arranged, as you did, to be inseminated after his death.

You did not have a child at the time of your husband's passing.

Whatever transpired after that point in time is of your own volition.

I think you are the one creating a slippery slope by connecting these dots. I don't think that giving survivor benefits to a child who was only a fetus when the parent died undermines the system of contraception and abortion case law. And while I think the "right" answer in this particular case is that Congress did not specifically intend to cover the posthumously conceived child (principally because the concept didn't occur to Congress when the law was enacted), if the law was changed to create a defined right for posthumously conceived children I don't think that would undermine the whole system of contraception and abortion case law either.

has the same rights as a child that was already born when the parent died. The rights attach not to the fetus, they attach to the child. No payments are due while the fetus is in utero and if the fetus isn't carried to term, no benefits apply. Which is why the slippery slope argument is off-point. No one is claiming that a fetus or egg or sperm should have the same rights as a child. They are suggesting that maybe the children of a deceased parent should have the same right whether they were born before the parent died, after the parent died, or even weren't conceived after the parent died.

Personally, I don't think such an outcome would be bad public policy -- I don't see much benefit in denying survivor's benefits to this small class of children. But I also don't think that the law was written with this situation in mind and that it should be up to Congress to decide as a matter of public policy whether and how it wants to address this situation (just as Congress has established various other rules and eligibilty criteria to govern survivor's benefits).

in this case, where there wasn't even a fetus at the time of death, just a vial of sperm.

Here's an interesting discussion.

http://www.cbsnews.com/8301-201_162-57400083/can-kids-inherit-sperm-donors-federal-benefits/

"What if the Capato twins were born four years after the death in this case?" asked Chief Justice John Roberts. "... So what happens if the biological mother remarries or something and then goes through this process?"

Justice Ruth Bader Ginsburg pointed out that adopted children have to be through the adoption process before one of their parents dies to get benefits. "There is a time limit for other children," Ginsburg said.

And then there's the difference in state inheritance laws. Karen Capato had tried to argue that they should have been considered citizens of New Jersey, which has different inheritance laws from Florida. The twins were conceived in Florida, but during the pregnancy Karen Capato moved to New Jersey.

"I don't see how you're going to 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," of inheritance law," Breyer said. "... It's a very complicated subject. And that's why I am rather hesitant to read it the way you want."
_____________________________________________


Some more questions here.
http://www.cnn.com/2012/03/19/us/scotus-posthumous-conception/?hpt=ju_c2


"Let's assume Ms. Capato remarried but used her deceased husband's sperm to birth two children. They are the biological children of the Capatos. Would they qualify for survivor benefits even though she is now remarried?" asked Justice Sonia Sotomayor. "A situation like that is what is making me uncomfortable, because I don't see the words 'biological' in the (federal) statute. I don't see the word 'marriage' directly, within the definition of 'child.'"

SNIP

Sotomayor jumped in: "I am interested as to what your definition of child is. Is it just a biological offspring? Is it limited to a biological offspring born of a particular marriage? But in what context?"

Rothfeld struggled to respond.

"What if the Capato twins were conceived four years after of the death in this case?" asked Roberts. "Would your argument be the same?"

"These children were born 18 months after the insured wage earner died," said Justice Ruth Bader Ginsburg. "If we look to other categories of children -- say, stepchildren, and there is also one for adopted children -- they qualify only if they had that status no less than nine months before the wage earner died, and adopted children there is also a limitation. The stepchild and the adopted child, there could never be any question of being born 18 months later. They wouldn't qualify. There is a time limit for the other children. And if Congress had thought about this problem, maybe it would put a time limit on this, too."

SNIP

born after the parent died should be granted survivor benefits. I'm still not sure if you think the law should be changed to eliminate that class of children from eligibiltiy and, if not, why you aren't starting down the slippery slope you are worried about.

As I said, this isn't a case about the eligbility of a fetus or sperm or an egg. Its the eligiblity of a child after its born. The eligibility to receive survivor benefits attaches to the child not the fetus, which also would be the case if a child conceived after the parent died was accorded survivor benefits.

I don't see anything in the discussion from the oral argument that goes to the issue you are raising. Rather it goes to the point that I was making: the current law doesn't appear to contemplate the situation at hand and applying it raises a lot of questions that are best suited for resolution by Congress which could decide not to extend benefits to posthumously conceived children or could extend such benefits with whatever limitation (e.g., time limits etc) it chooses.

to be a survivor, though I haven't read any legal opinions.

For one thing, the social security law requires that the "child" be a DEPENDENT of the deceased. I think you can easily make the argument that a fetus is a dependent of the father. But I don't see that with a vial of sperm.

I agree that these issues are best resolved by Congress -- and I think that's how the Court will decide. (And I'd have no problem with Congress deciding to draft a law that gave rights to these children without eroding contraception and abortion case law.)

Here's another question asked by Sotomayor:

http://www.washingtonpost.com/opinions/supreme-court-conceives-of-life-after-death/2012/03/19/gIQAxtJ5NS_story.html

“What if you are a sperm donor? Does any offspring that sperm donor have qualify?”

_______________________

If the current Social security law was interpreted the way Karen Capatu wants it to be, that is not a far-fetched possibility.

I'd be extremely concerned about an argument that finds that a fetus is a "dependent" of its biological father.

(To say nothing of the fact that from an IRS standpoint, I don't believe one can claim that a fetus is a dependant).

which requires that, in order to receive survivor's benefits, a "child" must have been a "dependent" of the deceased while he was alive.

How could a vial of sperm be a dependent?

decide you're ready? Like I said in a previous post, when cloning becomes possible this is all going to get very interesting.

eligible for survivor benefits?

Are you just trying to be insulting or is this a real question?

Should the friends be able to collect survivor's benefits for any children born, based on the DNA link?

Survivor's benefits aren't limited to children born within a marriage -- but they have been, up to now at least, limited to actual children, rather than to vials of sperm.

This isn't a case of a pregnant widow losing her husband. This woman chose to have the children after her husband passed on. Regardless of who the father is she is no different than any single mother in my view. Survivor benefits should apply to survivors who were conceived before death only. If this were allowed what would stop anyone from bearing the child of a deceased male and applying for benefits? A wife of a dead multimillionaire could pass out sperm to her friends and family.

It's not the child's fault for his or her conception. To deny them is nothing more than discrimination.

on edit: This is one of those things that punishes the wrong people...more specifically children. There should be no middle ground on this.

Think of the children!

although, it has rarely happened.

I would add that if a man decides to donate his sperm, he is well aware that a baby will likely result. If he does not want to risk of possibly paying child support in the future, he should not donate.

Children should not be penalized for how they are conceived.