Monday, May 28, 2012

Benefits to Children Conceived after their Father's Death

Lots of children are born after their father’s death, and some of them are conceived after their death as well.  The first conceptions using frozen sperm occurred in the 1950s, and  -- now – millions of men have frozen their sperm as a hedge against injuries that could affected their fertility.  That option has created the prospect of conceiving children after the death of their fathers.  But this is a legally confusing outcome in the sense of determining what rights and benefits children conceived this way have.  Suppose, for example, a woman used her deceased husband’s frozen sperm to conceive 3 or 4 children after his death?  Do those children have the same entitlements as children conceived during his lifetime? 

In May 2012, the U.S. Supreme Court evaluated a claim by such children – conceived 18 months after their father’s death – that they were entitled to certain Social Security benefits that depended on their father.  Writing for the Court, Associate Justice Ginzberg said that such benefits do not extend to the children if they cannot inherit under state law, and the state law in question specifically excluded children from inheritance if they were not conceived in the father’s lifetime. 
This conclusion does not mean, however, that Congress or other legislative bodies could change these circumstances.  In general, however, it is probably best to recognize as heirs in a legal sense only those children conceived during a father’s lifetime.  Otherwise, lots of downstream problems would occur.  Suppose, for example, that a man’s will divided his estate equally among all his children.  How would that apply to children conceived, say, 2 or 3 months after his death? Would they be entitled to a share of the estate? 

As Justice Ginzberg noted, legislatures are free to do what they want in regard to apportioning benefits that belong to a child by reason of their father’s status (as a beneficiary of Social Security or whatever).  There is no moral requirement, however, that children conceived after their father's death must have the same entitlements as children conceived during his lifetime.

For the full (but short) story on this Florida case, see: