From the NPR item:
Under the government's reading of the statute, say the Capato lawyers, a posthumously conceived biological child of a married couple is not entitled to survivors benefits, based on state inheritance law, but those state laws do not disqualify adopted children, stepchildren, grandchildren or even step-grandchildren.
I'm guessing that the laws do, in fact, disqualify adopted children, stepchildren, etc. if they were conceived/adopted after the death.
But I dunno. Having a child under such circumstances doesn't seem like the sort of frivolous decision that the government should be troubled about subsidizing. And if Congress doesn't like it, they can pass a law.
Having a child under such circumstances doesn't seem like the sort of frivolous decision that the government should be troubled about subsidizing.
No way. We should support children because we should support children. We should not create some weird incentive for posthumous in vitro offspring.
I'd go further--not all individuals conceived prior to the parent's death are automatically survivors. A cryopreserved embryo that is implanted and born after a parent's death also shouldn't count as a survivor for the purpose of benefits.
Anybody who would voluntarily take on twin infants in addition to a toddler as a 40-something single parent is completely goddamned insane.
It is definitely stretching the meaning of the word "survivor" to apply it to someone who did not live through the event.
Did she know in advance that they were twins? That's not relevant to the question of whether they should be entitled to benefits, but it is relevant to whether she is insane or at least the degree of insanity.
For argument's sake, if she had been scheduled to go the day after her husband died to have a fertilized egg implanted, would that be all right? Perhaps we could have a 30 day window like the valuation rule for estates. (My favorite case on that was the one where someone claimed that an estate should not be taxed, because on the day he died the winning lottery ticket was only worth $1.
And would we be conceding too much to the fundies if we distinguished between sperm and a fertilized egg?
5: Yeah, only 'live through' has a weak sense. Example: Husband knocks up wife, is hit by bus the next day. The resulting child is a survivor (benefits-wise), although saying they lived through a parent's death is a little odd. Alive at the time, anyway.
So, I take it that the general cut-off point for survivors' benefits is conception rather than birth? Seems rather imprecise for a bureaucracy with so much money at stake.
I should add I have no idea what the law is. That's just how I'd prefer to set it up.
It seems to be an issue of state law. Let 50 51 flowers bloom.
I'm confused as to why everyone thinks this is a problem. I do think that the woman's decision was ill-advised, but I don't think that she did it for the money, so no need to worry about incentives, nor do I think that it's a common enough phenomenon to end up costing social security a significant amount. Am I missing something?
Can't we have a lengthy philosophical thread like the one about when it would be ok to cheat of your spouse didn't find out.
I would be willing to grant a survivors' benefits exception to this woman's twins if she had their feet surgically replaced with Oscar Pistorius-style metal springs.
||Speaking of babies: If one is in possession of an outsize one-year-old with a small fever, does one dose by age or by weight? Basically it's a 100% difference and I am not sure if there are concerns about tiny kidneys and livers above and beyond weight.|>
I'm confused as to why everyone thinks this is a problem.
I'm not a fan of subverting the rather clear cut purpose of a social program. If we should subsidize having children then let's just do with money, paid leave, free daycare, etc. These things are not the purpose of SS.
It also rubs me the wrong way that someone with the money for in vitro is trying to lawyer her way into a kid subsidy when there's real survivors not getting any help because mom or dad was working for a shady construction firm or some other gig paying cash under the table.
16: http://pediatrics.about.com/cs/usefultools/l/bltylenoldsgcal.htm
16: If it's a low fever you don't dose them at all. There's nothing to be gained by creating an active sick kid as contrasted to a sleepy one and supposedly fevers fight bugs.
16: With large babies, we dosed by weight, but at this remove from infancy I can't remember if we had good reason. They didn't die, though.
You know the alternating Tylenol/Motrin trick, right? Google for details if you're unfamiliar, but the idea is that you can only give, e.g., Tylenol every six hours but Tylenol then Motrin three hours later then Tylenol three hours after that is fine. I think we only did that once or twice, for really unusual fevers.
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You know, with this Trayvon Martin murder, part of what is outrageous is that it happened at all. But what makes it particularly infamous is the official non-response. We're FIFTY-SEVEN YEARS on from Emmett Till, and Southern* "justice" works the exact same way. There is not enough shit in all of Florida to burn down in recompense for this crime.
I'm also still angry about all the anti-choice stuff. But I'm still on hiatus from the radical scene. I'm not sure I'll ever really go back, either. It just seems like we're spinning our wheels a lot of the time. The IWW is okay, I guess, but it's so small. I just wish there was a clearer path to follow.
*Not that it's so much different in the North, really, but there's a specific way that Southrons do this kind of thing that really rankles.
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You guys are the bestest. Thanks. He has a low-grade fever and is sniffy/coughy -- but he is also getting some more teeth, which can apparently be the cause of all those symptoms. No idea!
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They got the better end of the deal
Jesus F. Christ.
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21: Do we need a separate thread for outrage about the Trayvon Martin murder? I've got some to unload.
23: Errol Morris flipped the fuck out on me when I asked him if any of the torturers were sorry. (His film Standard Operating Procedure had just screened, and although there's one soldier who says he's ashamed because he's brought disgrace to his family name, none of them express the least bit of sympathy for, or offer any apologies to, their victims. Call me crazy, but it seems like maybe one of the things you'd want to do to clear your name after being outed as a torturer is say that you're sorry and you wouldn't do it again. Could be a help with some of those job applications.
In general the whole premise of insurance is invalidated if you knowingly take actions that will lead to a payout. It's supposed to cover low probability high cost events (have 3 kids, parent dies, cover cost of kids)- changing the order of those (parent dies, then have kids who get benefits) makes it not really insurance. Now maybe we want to cover those situations on a non-insurance basis, like 17 says, but if so make the case for that.
I'd bet they're hoping that the courts will follow the letter of the law and not the spirit. I'll try and see what that letter is.
HTF can it be a state matter? It's about benefits under a federal program. Is there some state policy on IVF it would be inconsistent with?
And now I see I'm recapitulating the report.
In general the whole premise of insurance is invalidated if you knowingly take actions that will lead to a payout. It's supposed to cover low probability high cost events (have 3 kids, parent dies, cover cost of kids)- changing the order of those (parent dies, then have kids who get benefits) makes it not really insurance.
In these terms, social security is hardly insurance anyway. It's not as if living to 67 is a low probability event these days. And invalidating it on the grounds that the recipient took actions to get a payout would be rather perverse. Hey you! Stop living a healthy life! Start smoking, dammit.
"social security is hardly insurance anyway"
I agree, I don't think it is, which is why they should just say we're going to support old people, we're going to support child care. The case in the article is more specifically insurance, though- survivor benefits.
Can't really see getting het up about this either way. There's no incentive problem; the rules are what the rules are and the woman involved is making a play for some extra cash. I don't know if she's right or not, but can't really blame her for trying, and this is so not a bigger problem at all I can't see getting worried about changing the rules.
Yeah, but survivors' benefits under Social Security.
Social Security isn't insurance. It's a pension.
Errol Morris flipped the fuck out on me when I asked him if any of the torturers were sorry.
Wait, why did your question set him off? Was he annoyed by the question, or annoyed by the fact that the answer was, "no"? It just seems odd that he would get pissed off at you about it.
Social Security is actually several types of programs under the same name. I'd worry politically about splitting things like survivor insurance benefits from the pension program since you might as well use the political clout of the latter to support the worthiness of the former.
A friend's (estranged, deadbeat) father became severely disabled in a skydiving accident about a month after my friend turned 18. He wasn't surprised that his father even managed to arrange that in such a way that he and his mother got no money.
Yes, Social Security is a pension (in addition to a disability and survivors insurance program). But a pension _is too_ insurance. It is insurance against living too long. That's the biggest problem with the shift from defined benefit pensions to defined contribution retirement accounts (IRAs, 401(k)s, etc.) -- that there is no way for someone to take their retirement savings and buy longevity insurance at anything like a fair price.
Yoy can buy annuities, reverse mortgages, but they don't have the risk pooling that's the major benefit of govt programs. If someone fucks up and tanks the economy right when you need to retire, sucks for you.
The survivor benefits portion of social security is not insurance against living too long. It is insurance you pay for with every paycheck so that your children will have some support, in case you die, until they turn 19.
The benefits are for the child, not the mother. At the moment, she gets to cash the checks, but if she loses custody for any reaosn, the benefits follow the children. I support granting the children benefits that (1) their father EARNED by paying into social security in his working life, and that other children of deceased parents receive, and (2) go a very small distance to giving a group of children who have single parents and no hope of child support a less difficult life.
(2) go a very small distance to giving a group of children who have single parents and no hope of child support a less difficult life.
Yes, but we should be supporting single parents and children with difficult lives, the end. Not via survivor benefits.
Would I advise a struggling mother to apply anyway? Sure, just like if your kid's school is horrible and you try to sneak them in another school, I'm not going to judge. But clearly that's not how public policy should be designed.
Also, there have been precedents involving survivor benefits for children whose fathers died before they were born (e.g. Bill Clinton), even when the father had no knowledge of the pregnancy. Generally, they get the benefits.
(there's also a comic/tragic line of cases from the pre-bloodtest era about how long after a man's death he can legally become a father for inheritance purposes. A widow who would inherit nothing unless she has her husband's baby faced odd incentives in the first few days of becoming a widow.)
34: He thought that by addressing the culpability and lack of contrition on the part of the actual torturers, I was somehow eliding the fact that they were hung out to dry by the Bush administration, and treated as fall guys, allowing Bush to be re-elected and continue the war in Iraq. Frankly, I felt this was pretty specious reasoning (it should be noted that I predicted exactly what was going to happen, in terms of one senior non-com taking the fall for everybody and the only officers who were disciplined being women or minorities basically as soon as the first pictures came out). I mean, I went to jail for protesting that war. Errol Morris was probably sitting around sipping martinis with his limousine liberal cronies on March 20, 2003. Fucker.
Also, there have been precedents involving survivor benefits for children whose fathers died before they were born (e.g. Bill Clinton), even when the father had no knowledge of the pregnancy. Generally, they get the benefits.
But this is clearly different. The pregnancy was set in motion while everyone is alive.
The pregnancy was set in motion while everyone is alive.
Also true of Mr. and Mrs. Capato.
40: We do, with foodstamps, AFDC etc. but everyone on this website agrees it's not enough. Using the social security system for this extremely small group will generally make them better off without reducing the AFDC pool available to others.
43: Not a relevant distinction.
If the man is alive, he pays child support whether or not he wanted the kid, and whether or not he was tricked into fatherhood by a golddigging mom. If he's dead, his social security will cover regardless of those circumstances also. We don't punish kids because their mother may have acted imprudently, or even deceitfully, in creating the kid. And we shouldn't.
From the facts of this case, it looks like the father wanted a posthumous baby, and wanted ot support it with his estate. Removing the insurance he paid for from his estate is especially cruel.
We do, with foodstamps, AFDC etc. but everyone on this website agrees it's not enough. Using the social security system for this extremely small group will generally make them better off without reducing the AFDC pool available to others.
It's not enough, sure. But we're talking policy here, and it's dumb policy to exploit a survivor program loophole for a small number of needy children. Especially given that IVF is so expensive that you're actually weeding out anyone very needy.
A better policy would just be to provide more through appropriate channels, no?
If the man is alive, he pays child support whether or not he wanted the kid, and whether or not he was tricked into fatherhood by a golddigging mom.
If a couple separates, and she gets his frozen sperm and impregnates herself without his knowledge, then I don't think he should be on the hook for child support. (No idea what the actual law says, though.)
Hmmm, I'm completely convinced by Unimaginative in 46. Also the objection that we shouldn't "make policy" for this is ludicrous; the number of people affected is so tiny.
If a woman gets pregnant by deceit, i.e. deliberately lying about whether or not she's on birth control, and this is somehow provable ( very unlikely), I think she should be on the hook for criminal charges. I'm not sure what I think about the father's responsibility for supporting the child in that case.
If a couple separates, and she gets his frozen sperm and impregnates herself without his knowledge, then I don't think he should be on the hook for child support. (No idea what the actual law says, though.)
Probably, the father is on the hook for child support. The idea is to benefit the child.
But that's not at all the situation here.
Look at it this way: say a father had a terminal illness and a 5% chance of survival, and impregnated his wife naturally during the period when the terminal illness and survival chance was known to both parties. And then the father died immediately after the birth of his child. I don't think there'd be much question that the kid would be entitled to survivor benefits: of course the child would be so entitled.
If it's an insurance program, it's insurance designed to pay out in the situation "what if I have a child that I can no longer support because I am dead," which is exactly what happened here. It's not limited solely to unexpected death.
47: But it seems like what you're saying is that survivor benefits should only go to needy families. There's an argument to be made on either side of that question, but I don't think it has anything to do with the posthumousness of the conception.
it's insurance designed to pay out in the situation "what if I have a child that I can no longer support because I am dead," which is exactly what happened here.
No, it's not at all what happened here. He did not have a child. He died. He ended, as a person. Then she had a child. It has his genetic code, but it should be supported because we support children.
The survivorship program is "You were trying to make a go of it at the moment he died. That should be continued." It should be a different program that supports this kid, same as if she adopted, or used a sperm donor.
That's not at all what I'm arguing. I was responding to the point that since she's so needy, and since the numbers are so few, let's not quibble.
I'm arguing that survivor benefits should go to survivors, and needy family aid should go to needy families. And since we're talking about how policy ought to be designed, they ought not pilfer from each other.
It's such a nice bright line: If you (alive) conceive a child, the state will support that child if you're dead. Why are you all troubled by this nice, bright, easy to enforce line?
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How can you people discuss this trivia when news this big is out?
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It has his genetic code, but it should be supported because we support children.
And, the normal way in which we support children is to have the biological parents pay an obligation of child support. Put it another way: if he had died intestate, would these children have been entitled to inherit and obtain support from his estate? If the answer is "yes" they are his children [nb -- I am not totally sure of the law of intestate succession that applies here], and the normal presumptions applicable to children should apply, including survivor benefits.
He did not have a child. He died. He ended, as a person. Then she had a child.
A child that they had planned on conceiving together.
The survivorship program is "You were trying to make a go of it at the moment he died. That should be continued."
No, not necessarily at all. If the father had renounced the child and family completely, he would still have an obligation of child support. If the father died, survivorship benefits (which go to the child, not the mother) would have gone to the child. If they'd known the father had a terminal illness when they'd conceived, the survivorship benefits would still follow the child. Whether or not you were "trying to make a go of it" doesn't have much to do with it -- it's a benefit designed to pay out to a child in the event that one parent is deceased and cannot provide support.
A child that they had planned on conceiving together.
They had lots of plans. It's a survivorship program. Not a Make-A-Wish foundation.
If they'd known the father had a terminal illness when they'd conceived, the survivorship benefits would still follow the child.
Right, because he was alive.
55: Because it's not clear to me where the bright clear line is -- this is probably a situation that wasn't possible or accounted for when the rules were drafted. But when they were drafted, they certainly covered both children born after the death of the father, and children conceived without the intent of the father. In fact, they covered any child, biologically the offspring of any man now deceased: there was no class of children excluded from survivors' benefits if they were the genetic offspring of a man who had paid into the program and was now dead.
When you say "bright line rule" you mean "I'm going to take this program that didn't exclude any children within the covered group, and carve out a brand new exception -- the first exception -- making a subclass of children now uncovered by survivors' benefits. And I'm going to do it on the basis of a distinction (between children conceived before and after the death of the father) that's nowhere explicitly stated in the law."
Now, your position makes perfect sense: I completely understand why you see it the way you do. But there is an argument for seeing it the other way.
there was no class of children excluded from survivors' benefits if they were the genetic offspring of a man who had paid into the program and was now dead.
How would the law handle the following situation: A family has a couple adopted kids, and then the dad dies, and then the mother adopts another child? That is the precedent for this situation.
It's a survivorship program.
Right, it is a program designed to pay benefits to surviving children for whom (a) one parent would have had to pay child support, but (b) can't pay child support, because that parent is dead.
In other words, it is social insurance that provides a means of providing child support (taken from that parent's income) for a child with a dead parent.
That's what he paid into social security for. There is no obligation that I can see that the death have been unexpected or a surprise. Indeed, although it's hard to tell from the story, it seems as if the couple had a natural child after learning of his terminal illness, but before his death. That child was unquestionably entitled to survivor's benefits. If that child was, so should his children who were conceived after his death.
If that child was, so should his children who were conceived after his death.
And children adopted after his death?
The "adopted after his death" example is different. If a husband and wife get separated, for whatever reason, and then the wife adopts some children independently, the husband has no obligation to support the independently adopted children.
But the law is (with some very narrowly drawn exceptions for sperm banks and the like) that you are responsible as a parent for supporting your biological children. That is true even if the children were conceived without your knowledge or consent. Here, had the father lived, the child would have been entitled to support from the father, even had the couple separated.
In this particular case, the father clearly intended to have children, and viewed those children as his. A program that is designed to provide support to a child following the death of a parent who otherwise would have been obligated and able to provide support is perfectly applicable.
But you can't adopt a child after death. Your widow can adopt a child, but adopting a child is a legal act that cannot be performed by a dead man. Conceiving a child is a biological act that can, these days, be performed by a dead man.
I'm not denying the logic of your position, but it's not slam-dunk compelling over the alternative. I think a thoughtlessly literal reading of the law and regs would make these kids eligible for the benefits, and to exclude them you'd have to make an affirmative policy choice. A reasonable one, but it wouldn't be a literal reading of prior law.
66: Could you just excerpt the dirty parts for us?
and viewed those children as his
...for specific non-standard definitions of "viewing" and "children".
67 should be qualified by the fact that I don't actually know what the law and regs are. If I did, I might have a different opinion as to whether they covered this situation.
OT: My cupboard now contains four (!) kinds of breakfast cereal and five (!!) kinds of cheese. I also seem to have acquired a cheese grater and one of those perforated metal thingies for loose tea.
I fear that I am fifty-odd pounds from being the fat male lead in a network sitcom that none of us has ever watched but our parents and cousins post about on Facebook every week.
I'm picturing Lunchy subsisting mainly on Wheaties au gratin, now.
Black tea packed in Sri Lanks is the way to go. Should be about $12/pound. There are many excellent green teas, but buying these is like buying wine, there is no cieling and a logarithmic curve relating price to quality.
Relax, Flippanter. It takes a long time to put on 50 pounds.
77: Exactly. If only Lunchy had been around during that conversation, Urple could have been enjoying Froot Loops fondue these many months.
But you can't adopt a child after death. Your widow can adopt a child, but adopting a child is a legal act that cannot be performed by a dead man. Conceiving a child is a biological act that can, these days, be performed by a dead man.
He didn't conceive a child. He froze some sperm. He could sign all the necessary paperwork years ahead of time, and stick it in their freezer, and we would know very clearly that he dearly wanted to adopt a child.
I am more puzzled after reading the transcript than before. I can't quite follow the argument without the briefing to read, but it looks like a child is a child for this purpose if under state law it would be entitled to inherit if the father died intestate. And that seems like a real can of worms -- if you probate an estate and then a child of the decedent is conceived and born years later, reopening the probate to give that child a share of the estate seems totally unworkable.
You don't have to eat the breakfast cereal, Flip.
OK, here are some more details, about what actually happened, from the opinion below:
In August 1999, shortly after the Capatos' wedding in New Jersey, Mr. Capato was diagnosed with esophageal cancer, and was told that the chemotherapy he required might render him sterile. The Capatos, however, wanted children, and thus, before he began his course of chemotherapy, Mr. Capato deposited his semen in a sperm bank, where it was frozen and stored. Somewhat surprisingly, given the treatment that Mr. Capato was by then undergoing, Ms. Capato conceived naturally and gave birth to a son in August 2001. The Capatos, however, wanted their son to have a sibling.
Mr. Capato's health deteriorated in 2001, and he died in Florida in March of 2002. His death certificate listed his residence as Pompano Beach, Florida. Three months before his death, he executed a will in Florida naming as his beneficiaries the son born of his marriage to Ms. Capato [*628] and two children from a prior marriage. Although Ms. Capato claims that she and her husband spoke to their attorney about including "unborn children" in the will, "so that it would be understood that . . . they'd have the rights and be supported in the same way that [their natural born son] was already privileged to," App. at 288, the will did not contain any such provision.
73 is one of those cases where I'm 90% sure it's a misspelling, but there's a 10% chance that "Sri Lanks" are actual objects which tea snobs are unaware that non-tea snobs are unaware of.
79: Thought experiment: this guy is having sex with his wife, and dies in media res. Massive brain hemorrhage, dies instantly, totally dead. He was just about to come. Seconds after death, but absolutely afterwards, seminal fluid leaks from his corpse while his body is still penetrating his widow (this is gross, sorry). She conceives and bears a child as a result of that leakage.
Does that kid, conceived after the death of the biological father from semen remaining alive after his death, get benefits? And if that kid does, why don't the Caputo twins? The words "frozen sperm" are, I'll bet, nowhere in the statutes.
80 -- I thought the argument quite well done. And that the government is very likely to win: Chevron if the statute is ambiguous, Justice Breyer's point regarding section h if it isn't.
68 -- Jump right in. Pretty much anywhere. Breyer beginning at 37 I found pretty convincing. Scalia taking the HG position.
Five kinds of cheese is a little nuts. I usually have three.
a child is a child for this purpose if under state law it would be entitled to inherit if the father died intestate.
AFAICT, this is what is at issue in the case. The feds argue that the artificially-conceived children were not entitled to inherit under intestate succession in Florida, and therefore not entitled to benefits. [Presumably, they weren't children under the law of intestate succession because they weren't alive at the time of death, and the law of intestate succession only applies to children alive then, for the estate administration reasons LB identifies].
The Third Circuit read the statute as providing benefits to any "child," with the intestacy-law provision one method of determining a "child," but not one designed to trump a situation where you indisputably have a biological child of the deceased. The Third Circuit decided that this reading read the statute consistently with its purpose of providing post-death child support to the child of a person who otherwise would have been obligated to pay support.
From reading the statute quickly, it looks like the whole issue could have been avoided had the husband issued a signed writing identifying the as-yet-to-be-born children as his children prior to his death. But what do I know.
Does that kid, conceived after the death of the biological father from semen remaining alive after his death, get benefits? And if that kid does, why don't the Caputo twins? The words "frozen sperm" are, I'll bet, nowhere in the statutes.
Because actually having sex and missing orgasming by minutes is wildly different from saying "Let's cover our bases and freeze some sperm in case I become infertile".
Scalia's retort at 30 shows that he reads the blog.
Five kinds of cheese is a little nuts.
Without even being at home to peek in the refrigerator, I'm sure we have American, Swiss, and Provolone slices, a block of cheddar, a bag of shredded mozzarella, a wedge of parmesan (or romano or asiago, depending on what was on sale), and a container of blue cheese crumbles, because we always have those. We also have both regular and smoked farmer's cheese that I picked up at the Farmer's market on Saturday, and individually wrapped cheese sticks for kid snacks.
Scalia's retort at 30 shows that he reads the blog.
You might as well cut and paste it over here.
There's too much emphasis placed on the genetics. What if she went to a sperm bank and got pregnant after he died? There's no question that the kid would not be eligible for his survivor benefits. Ok, so what if they mixed up the sample and it's not really his sperm? Does that some how magically change the situation because of whose sperm it was? I don't see why, since in all cases the entire action was taken by her well after his death.
One big difference is the extent to which the mother knew that she'd be conceiving children without the support of a partner.
I routinely buy 3 or 4 types of cheese at Costco each week. The kids like cheese. 5 cheeses is not a lot, although if they really were in the cupboard instead of the refrigerator I'd be concerned.
Got distracted by the other thread, but seriously, heebie is owning you all on this one (especially in 59). If you use my genetic material to conceive a child after I'm dead, that child isn't one of my survivors. Same goes for embryos created but not implanted prior to my death. Frozen incipient beings aren't survivors, nor is whatever you choose to make using a cube* of frozen sperm. Children you intended to have but didn't get around to actually having during your lifetime aren't your survivors, even if they are your children, and the relevant payouts shouldn't follow merely planned-for individuals.
*Well, I assume it comes in cube form.
Does that kid, conceived after the death of the biological father from semen remaining alive after his death, get benefits? And if that kid does, why don't the Caputo twins?
Right, this issue is pretty squarely raised by the facts here. The Caputos had one child, naturally, even after being diagnosed with esophegal cancer, and when Mr. Caputo was in declining health. Clearly, he was not expected to be an ongoing family wage-earner. The child was born slightly before his death, and there is no question but that this child is entitled to survivor benefits. He also, before his death, deposited some semen explicitly for the purpose of giving that naturally-born child some siblings, and the only question is whether those kids are entitled to benefits.
The only basis for denying them benefits seems to be that, since they weren't alive at the moment of death, they couldn't inherit under Florida's intestacy statute.
88: Sure, it's different, but where do you look in the statute to make that difference between two posthumously conceived kids legally relevant? (On spending a tiny bit more time with the transcript, I'm thinking Charley's right and the SSA, who agree with you, is going to win this one. I'm picking at the logic, but my guess is that the twins don't get benefits in the end.)
How about this? The father is alive, but infertile, and has frozen sperm. The mother, as part of their plan, drives off to the clinic to be impregnated with his sperm. She undergoes the procedure, drives home, and finds him dead on the floor -- the time of death is determined to be before the procedure occurred. Survivor benefits? If not, what's the difference?
There's too much emphasis placed on the genetics. What if she went to a sperm bank and got pregnant after he died? There's no question that the kid would not be eligible for his survivor benefits. Ok, so what if they mixed up the sample and it's not really his sperm?
The law is that you are responsible for providing support to your biological children, no matter what, and no matter why they were born. That's a good rule, and one designed to protect children, not adults. There's a narrowly-drawn exception for sperm banks. If the sperm came from a bank, the donor would not have a support obligation; if it was not, there would be a support obligation.
93: This is what makes the logic of Heebie's position persuasive, but it's not really in the law. "I have three days to live!"
"Let's share one last mad, passionate night of love, then. [Privately, I know you're not even thinking about conceiving a child, but I'm hoping for one, which I know I'll raise without you.]"
Two weeks later: "Thank goodness, I'll have a baby to remember my Reginald by. And that baby will be entitled to Social Security benefits."
97: I don't know the legal language, but surely there are a million cases where missing a cut-off by mere seconds, minutes, etc is phrased differently from cases where you intend to do something in the indefinite future and then you died.
Another thought for HG and those who agree with her: is there anyone who is the father of the twins? That is, is Mr. Caputo (dec.) their father, or are they literally fatherless? Do they have paternal grandparents, or do they have no paternal relatives at all?
If he is their father, and his relatives are their family, then why wouldn't you think of them as his children?
I don't get what the scenario in 99 is illustrating. That you get goofy consequences right around wherever you draw the line?
"This tea's from Darjeeling, right."
"No way, man. It's totes Sri Lanks"
90: I deduce from this that you are a family of meat-and-cheese-slices sandwiches. Deli sandwiches. Those can be cool, but not my own thing, so deduct them from the list. I have a block of cheddar, one of muenster, and some feta. Maybe a last bit of a wedge of parmesan, but that's hit or miss at any given time. I expect that these things depend a lot on the people in your household.
100: I think in real life you'd solve problems like the ones I posed by not looking too hard at the situation: it'd never turn into a legal issue, and if it did the finder of fact would find an excuse for muddling the sequence of events.
Another thought for HG and those who agree with her: is there anyone who is the father of the twins? That is, is Mr. Caputo (dec.) their father, or are they literally fatherless? Do they have paternal grandparents, or do they have no paternal relatives at all?
If he is their father, and his relatives are their family, then why wouldn't you think of them as his children?
He is their (biological) father, and the relatives are (biological and hopefully in person) family. But he's dead. And he died before they were born. So he can't support them.
101: This gets to the distinction I was trying to draw. Of course they're *his children*. The issue is that not all of his children are *his survivors* these days, thanks to the fact that there can be posthumously conceived children now. (Merely posthumous children were always possible because it's always possible to go straight from coitus to corpse.)
Heebie made the point way upthread about the separateness of survivorship care programs and general child and family care programs. I guess the point is that these are conceptually different piles of money. And this one doesn't fall into the former pile. (My view, at least.)
105: Yes, of course I would. So?
102: That the distinction can't be that the mother knowingly planned to raise the children without a father, because the same thing could be true for any family where a dying man conceived a child naturally, and the mother knew he was dying and intended the conception.
If a mother dies giving birth to her clone, does the child get retirement benefits or double survivor benefits?
Not so bright line: Father in a persistent vegetative state, mother impregnated with frozen sperm, father dies before baby is born.
Or, even better, father is removed from life support at the request of the mother before baby is born.
110: I don't know, but her face rang a bell.
"I have three days to live!"
"Let's share one last mad, passionate night of love, then. [Privately, I know you're not even thinking about conceiving a child, but I'm hoping for one, which I know I'll raise without you.]"
Two weeks later: "Thank goodness, I'll have a baby to remember my Reginald by. And that baby will be entitled to Social Security benefits."
This is indeed the perceived "unfairness" that drives the logic of Heebie's position, but that both proves way to much and is really not the law. If I'm a woman, and know that the man is not even thinking about and does not want to conceive a child, and I want to raise the child without the man at all, and I trick a man into getting me pregnant, the man will still have ongoing support obligations. No matter that the initial pregnancy was due to trickery. We have that rule as a means of providing benefits for children.
If that man died, the survivor's benefit from his social security would pass on to the child, in lieu of his support obligation. Again, regardless of the trickery or intent of the woman.
The social security "survivors" benefit is designed to provide a modicum of support for children who, due to one parent being deceased, do not have support otherwise available to them. Like child support generally, it's a benefit designed for children, not parents, and the mother's motivations in having the child -- whether or not they were wrong or even malicious -- are irrelevant to the entitlement of survivor benefits.
In fact, in the case here, the couple actually did something like the "Reginald" situation. The Caputo's had a child even knowing that Mr. Caputo was likely dying of esophegal cancer -- "hey, I'll have a child to remember him by, and I'll get social security benefits!" There's no question that this child is entitled to the survivor's benefit, nor should there be.
105, 108: What I mean to say is that there isn't a legal difference between 'right after death' and 'a long time after death' AFAIK; death is a bright-line. In a legal regime that excluded the twins from survivors' benefits, what would probably happen in my two examples is that there would be unprincipled fudging of the facts to give the immediately posthumous kids benefits, because it would seem wrong to exclude them.
109: More than that (and this is where I'm puzzled by what Heebie seems to be saying because it seems so un-Heebielike) the same would be true of any woman who planned to get pregnant by a man who can't be relied upon, for whatever reason, to support the children.
the separateness of survivorship care programs and general child and family care programs.Of course they're *his children*. The issue is that not all of his children are *his survivors* these days, thanks to the fact that there can be posthumously conceived children now.
I think you're misunderstanding the purpose of the Social Security "survivorship" program. It's to provide child support to children who otherwise would have been entitled to child support, but who now have a deceased parent. It is a child and family care program.
114: That was exactly my point: trickery or no trickery, Reginald is a father and his kid gets benefits. At which point any argument based on denying benefits because of the mother's intent to raise the kid without a father falls apart. I'm agreeing with you here. (I think we lose in the SC after reading the transcript, but I personally agree with you.)
100: I think in real life you'd solve problems like the ones I posed by not looking too hard at the situation: it'd never turn into a legal issue, and if it did the finder of fact would find an excuse for muddling the sequence of events.
Er, I would think it would turn into a legal issue pretty quickly --- wills and deaths and stuff right? Sure Social Security is not wills, but this kind of inheritance law is (traditionally) full of that sort of distinction.
I don't know about the rights and wrongs (given the general "don't punish the children" principle), but some part of my pre-reflective response is heebie-ish, and I think it's based on the finality of actual death. Like, if you conceive before the guy's actually dead, even if it's 99% probable that he's going to die, there's still hope, but once he's dead he's dead.
I think we lose in the SC after reading the transcript
Me too, but the reason is pretty much a statutory technicality -- because an unborn person doesn't have intestate succession rights, and because the statute seems to define "child" based on a right of intestate succession, the Caputos lose. But I think providing the benefit is more consistent with the purpose of the survivor benefit, as both the Third and Ninth Circuits found.
Anyway, I've had a flood of students in my office, and now I have to go, but sleep on it, you guys, and let me know when you see it my way.
Five kinds of cheese is a little nuts.
She is a foodie of the devoted kind. Every now and then she stops listing restaurant selections near wherever we happen to be and says "You don't care, do you?" and smiles.
119: Sure, but most estates aren't contested, and it'd be really hard to establish the facts. If we were talking a huge estate, and an adult child who wanted to exclude the posthumous child from inheritance, it could get actively litigated, but other than that I think everyone would just whistle and look in the other direction.
117: Entirely possible I'm misunderstanding it, but (what the heck) I'm still inclined to push the point. I'm not sure I see why children conceived posthumously (*significantly* so, to set the LB-ish examples aside), even if they're mine, should get such benefits.
Put it this way: the slippery slope I'm worried about is that it turns into a program that supports an indefinite number of possible persons who could be derived from any existing bits of my genetic line that happen to be hanging around, no matter how long I've been dead and gone. Whereas one might have thought that my children are those whose origins are rather closer to me--close in terms of originating in my intentional acts, at any rate.
To be clear, I want to leave it in place that there's a duty of support to children I might conceive in acts of desperate and/or drunken sex, but rule out a totally open-ended commitment to support for anything that might be created using my genetic material.
Now, how to do that in a not-terribly-ugly way?
I would agree that absent the crazy rich guy with the posthumous kid scenario, the odds of it ever being litigated are slim. But I am optimistic for crazy rich guys; they are the mainspring of the common law in many ways.
MR. ROTHFELD: I think that -- contrary to that I think you should interpret it our way because the government's application disfavors children who are born through, you know, artificial -- through assisted means by its incorporation of State law.
JUSTICE SCALIA: It disfavors children who are born after the father has died. Which is in accord with the title of the statute: Survivors Benefits. What is at issue here is not whether children that have been born through artificial insemination get benefits. It's whether children who are born after the father's death gets benefits
There, of course, Scalia is just flat wrong. It's a slip of the tongue (or the brain), he should have said conceived rather than born, but without any jiggery-pokery posthumous children naturally conceived inarguably get benefits.
Put it this way: the slippery slope I'm worried about is that it turns into a program that supports an indefinite number of possible persons who could be derived from any existing bits of my genetic line that happen to be hanging around, no matter how long I've been dead and gone. Whereas one might have thought that my children are those whose origins are rather closer to me--close in terms of originating in my intentional acts, at any rate.
I'd think the line is pretty clear: Is the child your child such that you would have a support obligation if you were still alive, or not? If you donate to a sperm bank, children conceived from that sperm are not your children for purposes of providing child support during life. They aren't (and shouldn't be) entitled to survivor benefits after death. If, as here, you consciously decide to use artificial insemination with a partner (such that, if you were alive, you clearly would have a child support obligation) your survivor benefits should pass to the child. Again, the point of the survivor benefit is to replace child support for a child who otherwise would be entitled to it.
Right, Scalia is conflating fertilization and birth. Both messy, but still different.
without any jiggery-pokery posthumous children naturally conceived
You have to have some.
So how does this apply to the billionaire who wants to create a perpetual trust by paying a surrogate to bear "him" a child from frozen sperm every seventy or so years?
... so that he can leverage compounding to posthumously destroy the world, obviously.
It's a slip of the tongue, to be sure. But respondent was wrong too.
Halford seems right, above, that this could apparently have been resolved if the husband had done what the wife wanted him to do while he was still alive. But, despite her telling him to, he didn't.
Respondent's argument about section (e) and (h) seems really bad -- fact is (or seems to be) that Congress set this up to be a matter for the states. Naturally, there are going to be strange results as somewhat fewer than 51 flowers bloom.
(Petitioner explained the reliance on state law thus in his opening:
The Social Security Administration has reasonably interpreted the Social Security Act to provide that as a general rule, a person seeking to establish eligibility or child survivor benefits must show that he or she would have been able to inherit personal property from the decedent under applicable State intestacy law. That interpretation is supported by the text, structure and history of the act, and it comports with principles of federalism because it defers to State law on the determination of family status, which is a traditional subject of State regulation.
I don't think respondent really toughed this.)
The life has to be in being at time of death; there's no relation to child/parent status.
(Which is why people use dead president clauses.)
129: I think M.Suit does have a point. Intent to conceive can't govern, because Reginald is a father. So if intent is irrelevant, is there ever a cut-off? If someone at the clinic steals the sperm and impregnates someone other than Mrs. Caputo? Fifty years later? All of the arguments I've made apply just as much to those situations, and those seem silly to me.
Really, I think someone should write some intentional regulations and deliberately draw a line someplace. I'd like the line to be something like "All naturally conceived children; all artificially conceived children if conceived with the consent of the father, whether during his life or posthumously." But someone would actually have to decide where to draw the line -- you can't figure out where it should be from abstract reasoning.
134: I think they had a fair argument -- that the state law intestacy argument was meant to settle cases where actual/legal parentage was doubtful. But even if Iowa lost its cornhusking mind and wrote their state law to exclude, say, nonmarital natural children from inheritance, the SSA wouldn't follow that: they'd agree that a child is a child if it fits within the core concept of 'biological child'. Respondent's argument is that we don't have to look to state law because the twins are core 'children' of Mr. Caputo. I don't think the argument wins, but it's an argument.
Seems like being dead should count for something.
The law is that you are responsible for providing support to your biological children, no matter what, and no matter why they were born.
Are sperm donors ever held responsible for child support? (this is a real question). If not, why not? Who waives the rights, and how do they get standing to waive rights to money/support that belongs to yet-to-be-conceived children?
129: Yeah, it's not that I don't find that a tempting position. It gets worrisome because once I'm dead I don't have intentions any more, and who knows what they would have been if I *had* been alive now? In the normal course of events, the deposit (so to speak) and the fertilization are so close to being part of the same event that it doesn't matter. But agreeing to put sperm on deposit isn't clearly tantamount to willing that it later be used to conceive a child.
The normal connection here seems to do a fair bit of legal work. If I have sex with someone not intending at all to have or support children, but I nevertheless contribute to producing a child, well, tough luck for me. That's on account of the normal and rather predictable consequence of sex. But deposits with a sperm bank aren't clearly and directly connected with such a normal course of events leading to fertilization. There you've merely done something that could, with a lot more intentional intervention, produce a child.
So, the line from initiating act to final outcome is less clear to me in the posthumous fertilization case. All of which matters because the case that these children should get support hinges on a set of analogies between this case and (1) cases where someone produces a child unintentionally but through normal means, and (2) cases where someone produces a child intentionally but through artificial means. Here I'd argue that the (counterfactual) intention is hard to establish, because the nature of artificial fertility is that it separates the normal process in a way that leaves (possible) gaps in intention.
139 without seeing 129, but I'm still curious about why not.
137 -- I don't think the statute says that. Now it's true that if Iowa (hawkeye not cornhuskers!) wanted to violate equal protection, the SSA would have to decide whether it had to follow suit. But I think the petitioners reading of section (h) is going to prevail. Because it makes sense. And because if there's any ambiguity at all -- like for example you're implying language into the statute as in 137 -- we're in Chevron land.
I realize that you don't believe in states, and so this is a difficult answer.
I agree with LB at 136, though--this isn't something you derive from principles, you just decide, preferably in a humane way. But someone should do it, because as it stands this case clearly falls into a penumbral zone that the technology opens up. There is no straightforward application from pre-existing cases that applies, as far as I can tell.
139, 141 -- there's a special statutory exemption for sperm banks, at least in California. And a few other ways to be a biological parent without a support obligation (eg surrogate mom) all of which are specific statutory exemptions.
143 -- The rule seems to be that 51 someones do it, and do it, not for the 100 potential claimants in this particular situation with Social Security, but for all the variations that come up in inheritance law.
137: Me: There's an argument, but I don't think it wins.
142: Charley: You're wrong: that argument doesn't win.
I agree with you, Charley, the argument's probably a loser. But that's what the argument is.
I'm confused: how can someone make a deposit bashful offering if he's intestate?
144 -- This, unverified by me, is from the Almighty Internet:
California: If you go through a licensed medical professional (even if the insemination is done at home), then the sperm donor automatically loses all claim to the child, and if the mother is married, the husband automatically becomes the legal father (assuming he and the mother sign a consent form to that end).
Oregon: Nearly identical statute to California.
Florida: If you are found to be a "donor" under state law, then all rights/obligations to the child are relinquished, even if the insemination is NOT done through a licensed medical professional. The courts will look to any written contracts in determining the parties' intent on the role of the donor.
Pennsylvania: Any insemination performed outside a licensed insemination facility will not legally be considered "artificial insemination," and the donor will automatically be considered the father of the child, with all the according rights and responsibilities.
New York: Contracts regarding sperm donation between a couple and a donor are generally unenforcable, and the court will only look at the best interests of the child in determining the rights and duties of the donor.
146 totally avoids the more serious issue of LB's ignorance of Midwestern state university mascots.
I don't think it's a fair argument.
Hawkeyes, I meant.
140 -- I don't know much about IVF technology, but I'm pretty sure that it's a fairly involved process to take the sample and store it and whatnot, and that the IVF banks don't let the spem be used without express prior written consent of the donor and donee. So the situation in which the IVF spem of a deceased man is used without the donors prior knowledge or consent, or used 50 years in the future, seems like pure science fiction. I'd say that for the foreseeable future the scenario is most likely to come up in situations where, as here, a couple knows that one spouse will die but want an additional child.
So what if some crazy rich dude hired a surrogate to carry his child after he died? In the eyes of the law, that child would have no biological parents! Thus freed from the strictures and support of society, and denied the birthright of every human to that point, the child would no doubt grow up a supervillain.
Sorry, 152 should have "in the state of California" in there someplace.
148 -- if the Caputos lose in the Supreme Court, those aren't the state statutes that will determine the issue. Rather, it's the state law of intestate succession. Which generally doesn't deal at all with issues of artificial insemination and the like.
154 -- Right. Those related to your colloquy with the Messy One. It's Capato, by the way.
Now it's true that if Iowa (hawkeye not cornhuskers!) wanted to violate equal protection, the SSA would have to decide whether it had to follow suit.
Begging the question, aren't you? This assumes that if Iowa (the "Show Me" state, right?) excludes non-marital children from inheritance, the SSA would absolutely have to decide whether or not to follow them, but if they exclude posthumous children, the SSA has no choice but to follow them? You can only dismiss the argument by assuming the conclusion: that posthumous children are necessarily less the 'children' of their biological parents than non-marital children are.
(the "Show Me" state, right?)
Land of Big Lincoln Skymall of America.
So what if some crazy rich dude hired a surrogate to carry his child after he died?
You're thinking small. Any crazy rich guy worth his salt would hire at least a hundred surrogates to carry his frozen sperm cubes.
And then the resulting children battle until only one undefeatable villain remains.
156 et al. yeah, I think Capato loses, but this is a case where you had two COAs going the other way, so it's not a slam dunk. The third circuit opinion seemed pretty good. Which is why it's in the Supreme Court, I guess. It's also a pretty weak a priori case for federalism -- why should entitlement to this purely federal benefit be something determined by state law, particularly a subset of state law that's not really on point? But I agree that Capato probably loses with this Court.
159 How long would it take for posthumous spermsicle play to stop being seen as kinky?
Please, for years now we've been raising parentless children into an army of superheroes to combat the coming wave of supervillains. What do you think goes on in the corn fields of Iowa Kansas, anyway?
Violating the dead with spermsicles will always be kinky, tkm.
Violating the dead with spermsicles will always be kinky
What about the dead violating the living?
http://caselaw.findlaw.com/pa-supreme-court/1033446.html
Pennsylvania Supreme Court wrestling with obligations of a known donor.
156 -- You think cutting off posthumously conceived children from intestate inheritance is an equal protection violation? The rational basis is in your own comments above (which echo [I'm pointing out for the people who didn't read the transcript] CJ Roberts' questions). And we're not talking about legitimacy, so it doesn't strike me that strict scrutiny is applicable.
My more or less arbitrary resolution of this conundrum is self-evidently superior to yours.
167: But a rational basis for wanting probate to be final isn't transitively a rational basis for denying survivors' benefits.
[Re: cheeses. Now that I'm home, I can add a tub of ricotta, plain and flavored cream cheese, and cottage cheese to the ten other cheeses listed previously.]
167 -- Right, well that's the problem with having a Congress: they do things differently than you or I would. It does make sense, though, for them to have declined to make their own rule, but to have a rule that tracks what the applicable state was doing. And yes, that state law answers a different question, but Congress seems to have chosen a body of law that is actually extant. States have statutes and cases dealing with who is and who is not entitled to intestate inheritance. So I can see why Congress would have been specific about what category of state law it was going to incorporate as its standard, rather than simply defer to state law in general, even it has been developed on different lines.
169. That's my quota of typos for the day. See you guys tomorrow.
I couldn't find any dirty parts in that transcript.
Maybe if I had a law degree?
My more or less arbitrary resolution of this conundrum is self-evidently superior to yours. -- CATCHPHRASE OF: THE SPERMINATOR!
I wouldn't sleep with you if you were the last man on earth! I'll wait until after you're dead.
I think there should be a Red Dawn-type movie for every state where the rallying cry is the nickname of it's primary public university.
"Mud Hens!"
128
There, of course, Scalia is just flat wrong. It's a slip of the tongue (or the brain), he should have said conceived rather than born, but without any jiggery-pokery posthumous children naturally conceived inarguably get benefits.
Are you sure? According to this :
... Because Florida law allows a postmortem child to inherit only if provided for in the decedent's will, the court held that the twins were not eligible for child's insurance benefits.
178: Why you dirty boy, you seem to have lost the "Game".