With the advent of assisted reproductive technologies, more couples are having children in ways we had never before thought possible. A osthumously conceived child?describes the situation where a father freezes his sperm at a fertility clinic, passes away, and then the mother conceives the father child through the clinic. The question before the Supreme Court in Astrue v. Capato wholesale sunglasses Are posthumously conceived children eligible to receive Social Security survivor benefits from their deceased parent?
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Although Social Security is a federal government program, states?intestacy laws determine eligibility for survivor benefits. The Court rejected the challenge that Equal Protection in the Constitution mandates similar treatment for all posthumously conceived children and denied the request to create a uniform rule. Instead, they maintained the status quo that state intestacy laws regarding inheritance rights would determine eligibility for this category of children.
Some states specifically allow posthumously conceived children to inherit (including Rhode Island, where I practice family law ), while other states deny them this right or fail to address the matter completely. The law tends to lag behind reproductive technologies and therefore, courts will constantly face new complications when biological advances and antiquated laws intersect.
Timothy J. Conlon, Esq. ?Rhode Island family lawyer