Supreme Court to hear in vitro case


The Supreme Court agreed to decide whether a child conceived through in vitro fertilization after a father’s death was entitled to a Social Security survivor’s benefit.

At least 100 such claims are pending at the Social Security Administration while officials try to resolve how the Depression-era law should be interpreted in an era of modern reproductive technology.

Since 1939, the Social Security system has provided a benefit to the family of a deceased wage earner, including his children. But it is unclear whether these benefits should be extended to children who were yet to be conceived when the wage earner died.


Karen Capato brought such a claim on behalf of her twins, who were born in 2003, about 18 months after her husband, Robert, died of cancer. The couple had married in Washington state in the late 1990s and later moved to Florida to start a business. After being diagnosed with esophageal cancer, Robert deposited semen in a sperm bank.

No one questioned that he was the father of the twins, but Social Security officials denied the mother’s claim for survivor benefits for them. They reasoned that under the law in Florida, children who were not conceived at the time of a parent’s death are not entitled to inherit his property.

Capato, who had moved to New Jersey, took her claim to court. She won before the U.S. court of appeals in Philadelphia. Its judges said that “undisputed biological children of a deceased wage earner and his widow are children” under the Social Security Act, and therefore are entitled to the benefits.

The U.S. 9th Circuit Court of Appeals in San Francisco had taken a similar view, whereas two appeals courts in the South had ruled that children conceived through in vitro fertilization did not qualify for benefits.

Social Security Commissioner Michael Astrue asked the high court to decide the issue. The court said Monday it would hear the case of Astrue vs. Capato in March and hand down a ruling by late June.