Social Security Debates Who Is a Survivor : Reproduction: Agency refuses to pay stipend to Louisiana child conceived after dad’s death, saying she was never his dependent.

Social Security is refusing to pay benefits to a Louisiana girl conceived three months after her father died of cancer, in a case that raises questions about the impact of new reproductive medicine on the country’s social programs.

The Social Security Administration argues that Judith Christine Hart, 4, is not entitled to survivor’s benefits because she was never dependent on her father, an aerospace engineer.

Judith was conceived from the frozen sperm of Edward William Hart Jr. after he died of cancer of the esophagus in 1990. She was born 10 days short of the first anniversary of his death.

An administrative law judge ruled in May that Judith was clearly Hart’s child and was entitled to his Social Security benefits.

Social Security’s appeals council, however, issued a preliminary finding that the judge may have made a serious error in law and that benefits should not be paid to the girl.

Judith’s mother, Nancy Hart of Slidell, La., and her attorneys were notified of the agency’s decision in July. The appeals council will review the case and is expected to issue a final decision in about three months.

Should it conclude that the administrative law judge erred in awarding benefits, the only recourse for Judith’s mother is to appeal to federal court, a step her attorneys have already begun.

“I am so angry I can hardly think,” Hart, a school music teacher, said after learning of the agency’s decision.

“My husband and I planned this child and I don’t feel government can step in and say how you reproduce, or when,” she said. “We’re not going to get rich off Social Security. It’s not the money; it’s the principle of the thing. How dare someone step into my private life like this?”

Both sides say the case raises questions about whether the rules surrounding Social Security, which dates from the Great Depression, are keeping up with advances in reproductive medicine.

Social Security argues that under the law, children must demonstrate that they were dependent on a deceased worker to qualify for survivor’s benefits, and that Judith fails the test because she was conceived after her father’s death.

The agency also says there isn’t a single state in the country that would recognize Judith as having inheritance rights.

“The controversy regarding Judith Hart’s eligibility for Social Security survivor’s benefits is not about whether she is the biological daughter of Edward Hart, but more a question about her dependency on her deceased father,” said Social Security Commissioner Shirley Chater.

“Such dependency is the crux of a child’s eligibility for monthly Social Security survivor benefit payments,” Chater said.

But Kathryn Kolbert, Hart’s lawyer, said Judith is the daughter of Edward and Nancy Hart and ought to be recognized as such by the government.

“Judith is Edward’s child, and law has to catch up with that reality,” Kolbert said, calling the decision “one more setback, but not by any means the last word.”

Kolbert is vice president of the Center for Reproductive Law and Policy in New York, a public interest law firm specializing in litigation involving reproductive issues.

About 1.9 million children of deceased workers receive survivor’s benefits from Social Security. Their monthly payments average $450.

Judith’s payments, based on her father’s work history, would be closer to $700 a month. If she ultimately wins her case, she also would be entitled to a lump-sum payment worth up to $30,000, according to an agency estimate.

The government pays survivor’s benefits to age 18, or 19 if the child is still in high school. Judith’s total benefits would be worth an estimated $150,000, excluding cost-of-living increases.

Chater said Social Security is reviewing all laws and policy-related issues raised by the case, apparently the first of its kind for the agency. She said changes in laws and regulations may be necessary because of recent medical advances.