Courts must weigh advances in reproductive science on family law
Monday, May 21, 2012
(San Diego) – A ruling Monday by the United States Supreme Court highlights the legal minefield being created by advancements in reproductive science that were never imagined when laws governing family relationships and responsibilities including financial obligations were written.
The United States Supreme Court ruled Monday that two children conceived through artificial insemination after the father had died were not entitled to Social Security survivor benefits.
In a 9-0 ruling, the justices ruled that Karen Caputo’s twin children did not qualify for the benefits. Caputo’s application had been denied by the Social Security Administration, saying that her late husband Robert needed to be alive at the time of the children’s conception for them to qualify. He had died 18 months earlier of cancer; Caputo used her husband’s frozen sperm to conceive the children. At the time of Caputo’s death, the only beneficiaries named in his will were his wife, their older son, and his two children from a previous marriage.
Various federal appellate court have ruled differently in similar cases, which left the Supreme Court to come to a final conclusion.
Family law attorney Myra Chack Fleischer, lead counsel for Fleischer & Ravreby, says the ruling is sound, but is hardly the end of the road as the legal system tries to cope with new family structures and biological relationships made possible through science that the law never imagined.
“This is literally a Brave New World. In this specific case, should the law try catch up with technology or not? Survivors’ benefits are intended to replace the income from a parent who would have produced income to raise the child themselves, but instead died. Those benefits stand in as the income for the surviving child.
“In the Caputo case, these are not surviving children. We would be replacing income from a parent who these children never met, and never will meet."
Fleischer says the case generates many questions about new legal definitions of being a parent created by new biological realities. “What about a couple or single woman who goes through IVF with donor sperm or donor eggs, and then find out that the donor has died? Would the children born due to the donation become eligible?”
What about circumstances where a woman has a one-night stand, and then learns later the biological father has died? Fleischer says the woman would have had to prove parentage by that man, and eventually have received child support for the survivors benefits to be available.
Fleischer says the door could also potentially be opened to fraud. “Let’s say we have someone who wants these benefits. She could become pregnant by a much older donor, since men never lose the ability to produce sperm. That donor dies, and the children are now eligible for survivor benefits,” explained Fleischer.
Fleischer says the law will need to come to grips sooner than later with the medical technology reality. “We have all kinds of technology that can help people have babies later, through different means than the old-fashioned way. The law doesn’t account for this yet. We need to look into the law and figure out ways to account for technology that can produce children in ways we never imagined,” said Flesicher.
In the meantime, Fleischer advises people who are taking advantage of medical technology to do some serious thinking about their circumstances and put legal protections in place including estate planning to provide for these children far in advance of the possible need.
About Fleischer & Ravreby
Lead Counsel and Family Law Expert Myra Chack Fleischer has been practicing law since 1997 and in 2001 founded Fleischer & Ravreby. Today, the firm focuses on divorce and other family law areas such as Divorce, Custody, Support, Division, and Agreements. Our expert attorneys have a unique mix of legal, parenting, and financial expertise for clients. In addition, the firm collaborates with therapists, investigators, and other key resources to resolve your family law situation. Fleischer has an uncommon combination of legal, accounting, parenting, and psychological skills and expertise that sets her apart as "The Family Law Expert of Choice". Myra infuses this expertise into her firm, adapting her abilities and approach to each client's situation.
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