Do posthumously conceived kids get Social Security Benefits? The Supremes will decide soon.

Shortly after Robert Nicholas Capato’s death, his wife Karen Capato underwent in vitro fertilization using his frozen sperm and gave birth to twins in 2003. Karen Capato applied for Social Security benefits on behalf of her twins as survivors of a deceased wage earner. The Social Security Administration ("SSA") denied her claim. An Administrative Law Judge (“ALJ”) affirmed, ruling that state intestacy law controls eligibility for survivor benefits for posthumously conceived children under the Social Security Act ("Act"). Therefore, the twins were ineligible for benefits under the applicable Florida law. On appeal, the district court affirmed the ALJ’s reading. The United States Court of Appeals for the Third Circuit reversed and ruled that the plain language of the Act entitles the Capato twins, whose parentage is not in dispute, to survivor benefits. Petitioner Michael J. Astrue, Commissioner of the SSA, argues that the Act requires the agency to apply state intestacy law to determine whether an applicant is the child of an insured wage earner for the purpose of receiving survivor benefits. In contrast, Respondent Karen K. Capato contends that the Act unambiguously entitles undisputed biological children of married parents to survivor benefits, without referring to state intestacy laws. The Supreme Court’s decision will authoritatively interpret the Act’s mandate on the determination of survivor benefits eligibility, and possibly reflect on the balance between legislative rulemaking and unanticipated progress of science and technology.

Should Karen's child be able to receive Social Security Benefits?  Read the full text of the issue presented on Cornell law by clicking here

Have questions about estate planning, sperm donation or social secuirty benefits?  Call our office for a consultation at 310.598.6428. 

A Texas Mother is Closer to Creating her Late Son’s Child

Much debate surrounds this issue of using someone’s sperm posthumously but it usually involves a husband or partner who has passed away.  In this case, it is a mother who is seeking to conceive a child by collecting her son’s sperm while he lay in a coma and on life support.  

According to the U.K.’s Daily Mail, 44-year-old Marissa Evans has found a surrogate in Mexico who is willing to carry her grandchild.  She has also hand-selected an egg donor from a list of potential candidates and now must only secure the financing to proceed with her plan.  

In 2009, Evans’ son, 21-year-old Nikolas Evans, sustained a head injury while trying to break up a fight in Austin where he fell, hit his head and lost consciousness.

The article on cited Tom Mayo, director of Southern Methodist University’s Maguire Center for Ethics and Public Responsibility, agrees with the sentiment.  Mayo told the Associated Press in 2009 that the desire to replace a deceased child is a classic scenario that, in this case, took a nontraditional turn.  

“This is a tough way for a kid to come into the world.  As the details emerge, and the child learns more about their origins, I just wonder what the impact will be on a replacement child,” said Mayo.  

The United States does not have specific legislation regarding the rights of men on gamete donation following their death, which leaves the decision in the hands of individual clinics and hospitals.  As such, many medical institutions implement in-house policies regarding circumstances in which the procedure would be performed.  

Many ethical issues surround the extraction and use of gametes from cadavers or patients in a persistent vegetative state.  The most debated are those concerning religion, consent, and the rights of the surviving partner and child if the procedure results in a birth.

This complex legal issue can arise in a variety of circumstances.  For a more information and to schedule a consultation with Kesten Law, please call 877-887-4403 or email