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Death benefits for children produced by in vitro fertilization?

The Supreme Court justices voiced doubt over whether children who are born of in vitro fertilization more than a year after the death of their father are entitled to his survivor’s benefits under the Social Security Act.

The dispute involves a clash over how to interpret the 1930s pension law in an era of sperm donors and modern fertility.

In 1939, Congress added a provision to the Social Security Act to give benefits to the survivors of deceased wage earners, including children who were dependents. But judges have been split in the past decade over who qualifies as a survivor under this law. At issue is whether mothers can claim benefits for children who were conceived after their father died.

The Social Security administration says it has 100 such claims pending, but it has turned down all such claims.

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Karen Capato was told she had a “very sympathetic case” when she sought benefits for her twins born in September 2003, but her claim was denied nonetheless. She married Robert Capato in 1999, but not long afterward, he was diagnosed with esophageal cancer. The couple wanted children, and Robert deposited semen in a sperm bank.

Robert Capato’s health deteriorated, and he died in March 2002 in Florida. Before his death, he had executed a will that named the couple’s son who was born in 2001. He also told his attorney he wanted to provide for any “unborn children,” but no such provision was added to his will.

Eighteen months after his death, however, Karen gave birth to the twins that were the focus of the court case. She sought survivor’s benefits for them on the grounds that they were the biological children of the deceased wage earner.

But in the Supreme Court on Monday, a Justice Department lawyer said the twins were not his heirs under Florida law because they were not included in the will. In addition, one provision of the Social Security Act says a surviving child is one who is “dependent on the deceased wage earner at the time of [his] death.” Since the twins were not yet conceived, they could not have been dependents at the time of his death.

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Justice Antonin Scalia said the words of the law strongly suggest the benefits do not flow to “children who were born after the father’s death.”

Chief Justice John G. Roberts Jr. said the court usually defers to a government agency view of the law if its words are unclear. It is “at least ambiguous” what the law means, he added.

One justice described the law as a “mess,” but most of them said the provisions appear to limit survivors’ benefits to those who were in fact dependents when the wage earner died.

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