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Originally published November 14, 2011 at 6:57 PM | Page modified November 15, 2011 at 6:09 AM

High court to rule on Social Security benefits for some in vitro children

The Supreme Court agreed to decide whether a child conceived after a father's death through in vitro fertilization is entitled to a Social Security survivor's benefit. At least 100 such claims are pending at the Social Security Administration.

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WASHINGTON — The Supreme Court agreed to decide whether a child conceived after a father's death through in vitro fertilization is entitled to a Social Security survivor's benefit.

At least 100 such claims are pending at the Social Security Administration, while officials try to resolve how the Depression-era law should be interpreted in an era of modern reproductive technology.

Since 1939, the Social Security system has provided a benefit to the family of a deceased wage earner, including his children. But it is unclear whether these benefits should be extended to children who were yet to be conceived when the wage earner died.

Karen Capato brought such a claim on behalf of her twins who were born in 2003, about 18 months after her husband, Robert, died of cancer. The couple had married in Washington state and moved to Florida to start a business. After being diagnosed with esophageal cancer, Robert deposited semen in a sperm bank.

No one questioned that he was the father of the twins, but Social Security officials denied the mother's claim for survivor benefits for them. They reasoned that under Florida law, children who weren't conceived at the time of a parent's death aren't entitled to inherit his property.

Karen Capato, who had moved to New Jersey, won before the U.S. Court of Appeals in Philadelphia, which said that "undisputed biological children of a deceased wage earner and his widow are children" are entitled to the benefits.

The 9th U.S. Circuit Court of Appeals in San Francisco had taken a similar view, while two appeals courts in the South had ruled that children conceived through in vitro fertilization did not qualify. The Social Security commissioner asked the high court to decide the issue.

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