Legalizing conception: on Astrue v. Capato

Guest post by Susan L. Crockin, J.D.

The U.S. Supreme Court’s unanimous May 21 decision, Astrue v. Capato, should not come as a surprise to those following legal issues involving posthumously conceived children. The court was asked by a widow, Karen Capato, to grant Social Security benefits to twins she conceived after her husband Robert’s death using sperm he had stored for that purpose. The problem was that Florida’s intestacy law did not view the children as Robert Capato’s survivors—so she argued that the federal Social Security law alone could determine qualifications for benefits, and biological children of a married man should be deemed eligible.

The court found against her, interpreting the federal law as the Social Security Administration argued, and as it has been consistently interpreted by several state supreme courts: state law governs the determination of a “parent/child” relationship with Social Security benefits awarded only to those who qualify under the state law where the deceased was “domiciled” at the time of his/her death. The court’s ruling means states will continue to differ on this question and federal law will respect those states’ laws.

Specifically, the U.S. Supreme Court noted that under Florida law, a marriage ends at death. It also noted that although Robert signed a consent that made it clear he wanted any resulting children to be considered his, he did not provide for the twins in his will—an oversight that would not have changed the benefits outcome but which should serve as a warning to patients and providers about the need to conform estate documents to their intentions.

Given how few cases the U.S. Supreme Court has heard involving assisted reproductive technologies (ARTs), the case is also notable for a few comments the court made in passing (“dicta”). Referring to a number of artificial insemination laws, it noted that “laws directly addressing use of today’s assisted reproductive technology do not make biological parentage a universally determinative criteria,” and that marriage “does not ever and always make parentage of a child certain” or the absence of it “uncertain.” The language will be certain to work its way into future cases as the ARTs provide expanding opportunities for—and disagreements about—parentage.

One interesting question: had Robert and Karen Capato frozen embryos rather than sperm, and had Robert died in a state that recognized personhood upon fertilization (as many of the recent personhood initiatives have attempted) or in Louisiana where embryos are deemed “juridical persons,” would such a law mean that embryos as well as any resulting children would be considered legal heirs?

Susan L. Crockin, J.D., is the principal of the Crockin Law & Policy Group, LLC, is an adjunct professor at Eastern Virginia Medical School, and teaches at Tufts University. She has edited several books on the legal issues of ARTs and is coauthor of Legal Conceptions: The Evolving Law and Policy of Assisted Reproductive Technologies. Crockin also writes the column “Legally Speaking,” published in ASRM News.