Supreme Court rules on IVF and reproductive medicine


SAN DIEGO, May 22, 2012 –  A ruling Monday by the United States Supreme Court highlights the legal minefield being created by advancements in reproductive science that were never imagined when laws governing family relationships and responsibilities including financial obligations were written.

The United States Supreme Court ruled Monday that two children conceived through artificial insemination after the father had died were not entitled to Social Security survivor benefits.

In a 9-0 ruling, the justices ruled that Karen Caputo’s twin children did not qualify for the benefits. Caputo’s application had been denied by the Social Security Administration, saying that her late husband Robert needed to be alive at the time of the children’s conception for them to qualify. He had died 18 months earlier of cancer; Caputo used her husband’s frozen sperm to conceive the children. At the time of Caputo’s death, the only beneficiaries named in his will were his wife, their older son, and his two children from a previous marriage.

Various federal appellate court have ruled differently in similar cases, which left the Supreme Court to come to a final conclusion.

The Court made a sound ruling, but it’s hardly the end of the road as the legal system tries to cope with new family structures and biological relationships made possible through science that the law never imagined.

This is literally a Brave New World. In this specific case, should the law try catch up with technology or not? Survivors’ benefits are intended to replace the income from a parent who would have produced income to raise the child themselves, but instead died. Those benefits stand in as the income for the surviving child.

In the Caputo case, these are not surviving children. We would be replacing income from a parent who these children never met, and never will meet.

The case generates many questions about new legal definitions of being a parent created by new biological realities. What about a couple or single woman who goes through IVF with donor sperm or donor eggs, and then find out that the donor has died? Would the children born due to the donation become eligible?

What about circumstances where a woman has a one-night stand, and then learns later the biological father has died? The woman would have had to prove parentage by that man, and eventually have received child support for the survivors benefits to be available.

The door could also potentially be opened to fraud. Let’s say we have someone who wants these benefits. She could become pregnant by a much older donor, since men never lose the ability to produce sperm. That donor dies, and the children are now eligible for survivor benefits. Don’t think it wouldn’t ever happen.

The law will need to come to grips sooner than later with the advanced in medical technology. We have all kinds of technology that can help people have babies later, through different means than the old-fashioned way. The law doesn’t account for this yet. We need to look into the law and figure out ways to account for technology that can produce children in ways we never imagined.

In the meantime, if you are one of the thousands of people who are taking advantage of advances in reproductive technology and considering some unusual ways to become a family, do some serious thinking about your circumstances. Put legal protections in place including estate planning to provide for these children far in advance of the possible need. Don’t assume the law knows what to do with you just yet.

Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra.

Copyright © 2014 by Fleischer & Ravreby, Attorneys at Law

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