NCPA - National Center for Policy Analysis

Fertility's New Legal Front

August 4, 2010

Advances in reproductive technology that were the stuff of science fiction just a few decades ago are wreaking havoc on a corner of the Social Security system -- survivor benefits for some children whose parents have died.  Every year, more babies are born stemming from sperm or embryos that have been stored for months or years.  In some cases, one parent has already died, usually the father, says the Wall Street Journal. 

Although the federal government generally must pay monthly benefits to children when parents die, the law is murky on whether it has to do the same for a child conceived after a parent's death.   Sometimes, the Social Security Administration pays, sometimes it does not.  So far, the decision has largely depended on the laws in the state in which the deceased parent lived, says the Journal. 

State laws on posthumous birth -- or the birth of a child after the death of a parent -- vary widely, says the Journal: 

  • Eleven states explicitly allow recognition of a parent-child relationship that begins with posthumous conception.
  • The laws of most states, however, define the parent-child relationship more traditionally; for the relationship to exist, a parent must be alive at the time of conception. 

Ambiguities in the law surrounding the legal rights of a child born posthumously are increasingly leading to lawsuits, says the Wall Street Journal: 

  • In recent years, courts in Massachusetts, New Jersey, Arizona and Iowa have ruled that such children are entitled to Social Security benefits.
  • Courts in Florida, New Hampshire and Arkansas have ruled that benefits should not be paid. 

Source: Ashby Jones, "Fertility's New Legal Front," Wall Street Journal, August 3, 2010. 

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