June 10, 2004
Two children conceived from the frozen sperm of an Arizona man after his death are entitled to his Social Security survivor benefits, a federal appellate court ruled Wednesday.
The 9th U.S. Circuit Court of Appeals in San Francisco said the fact that twins Juliet and Piers Netting were conceived 10 months after the death of their father, Robert, does not undermine their legal status as his children. As such, the judges concluded, they are entitled to receive his Social Security death benefits.
The action overturns not only a decision by the Social Security Administration but also a ruling by U.S. District Judge John Roll. He had concluded that benefits from the Social Security trust fund were inappropriate because the children were not dependent on their father at the time of his death. Roll said state law requires children to survive a parent — the children must be alive or at least conceived at the time of death — to be considered children for inheritance purposes.
But Circuit Court Judge Betty Fletcher, writing for the unanimous three-judge panel, said all that is trumped by Arizona law, which declares every child to be legitimate and entitled to support from their parents.
The implications go beyond Arizona. Priscilla Smith, who intervened in the case on behalf of the Center for Reproductive Rights, said she expects this case to set precedent nationwide because it also is based on an interpretation of federal statutes.
She said Netting had made Social Security payments, essentially purchasing insurance for his anticipated survivors.
A representative of the Social Security Administration said the agency will have no comment until it can review the decision.
Court records show Robert Netting was diagnosed in 1994 with cancer.
Based on the possibility that chemotherapy could leave him sterile, Netting and his wife, Rhonda Gillett-Netting, delayed the start of his treatment until he could deposit semen at the University of Arizona Health Sciences Center where it was frozen and stored for later use by his wife.
Netting died February 1995. In December of that year, Gillett-Netting was implanted with the fertilized eggs, giving birth in August 1996. She subsequently sought Social Security survivor benefits for the children.
Fletcher acknowledged that developing technology "has outpaced federal and state laws which do not address directly the legal issues created by posthumous conception."
The judge said federal laws take an expansive definition of "dependency." And she said the Social Security Act "is construed liberally to ensure children are provided for financially after the death of a parent."
Fletcher also said that the children are "indisputably Netting’s legitimate children" under Arizona law.
She specifically cited court rulings dealing with questions of legitimacy and support.
And Fletcher noted a state law that the biological father of a child born using artificial insemination is considered a "natural" parent if the father is married to the mother.
"Under Arizona law, Netting would be treated as the natural parent of Juliet and Piers and would have a legal obligation to support them if he were alive, although they were conceived using in vitro fertilization, because he is their biological father and was married to the mother of the children," Fletcher said.
"Although Arizona law does not deal specifically with posthumously conceived children, every child in Arizona, which necessarily includes Juliet and Piers, is the legitimate child of her or his natural parents," she said.
The judge said the questions of state inheritance laws are irrelevant to this issue.
Gillett-Netting, an assistant anthropology professor at the University of Arizona, said the ruling makes sense because she and her husband always intended to have children, even if he died.
"We discussed it when he banked the sperm for me," he said. "The children are legitimate children and legitimately his."
Fletcher cautioned that this ruling does not mean every posthumously conceived child in Arizona would be eligible for survivor benefits on the basis of the earnings of any deceased sperm donor.
"If the sperm donor had not been married to the mother, Arizona would not treat him as the child’s natural parent, and he likely would have no obligation to support the child if he were alive," the judge explained.
But even in that case, Fletcher said, the Social Security administrator could conclude the man met the definition of parent under other federal laws.