The current U.S. Supreme Court session is proving to be an exciting one. In addition to granting review of healthcare reform cases today, the Court also granted review in Capato v. Astrue—a case involving the rights of posthumously-conceived children.
In this world of assisted reproductive technologies (ART), the facts of this case are all too common. Mr. Capato, facing chemotherapy for esophageal cancer that could render him sterile, deposited semen in a sperm bank, where it was frozen and stored. Shortly after his death in 2002, Mrs. Capato began in vitro fertilization (IVF) using the sperm of her late husband. She conceived, and gave birth to twins 18 months after his death.
While the facts of the case are fascinating, the bottom line is that the Social Security Administration denied Mrs. Capato’s application for surviving child’s insurance benefits on behalf of the twins. The case has moved through the federal courts, and will now be heard by the U.S. Supreme Court.
At least two other cases involving the rights of posthumously-conceived children—one out of Iowa (Beeler v. Astrue) and one out of Virginia (Schafer v. Astrue)—are also moving through the federal courts. The various Circuits have reached conflicting results, making the issue prime for Supreme Court review.
AUL has not taken a stance on whether posthumously-conceived children are entitled to social security benefits, and the issue involves analyses of state inheritance rights and insurance benefits. But these cases demonstrate yet another area where technology has vastly outpaced the law.
These cases also highlight the fact that parents, when considering IVF, are not informed of all of the potential implications of their decisions. What happens to embryos if the parents separate? If one parent dies? Or if the parents no longer want to use the embryos? Do posthumously-conceived children have inheritance rights in the state? Are IVF-created embryos considered “persons” or “property” by the state?
Most of these questions (and many others) are unanswered—indeed, are unasked—when parents undergo IVF or other forms of ART. Sadly, only four states require any kind of informed consent before parents undergo the IVF process. As such, we can only expect more cases like Capato v. Astrue to be filed in state and federal courts.
To assist states in regulating the IVF process and ensuring the health and welfare of both the parents and children involved, AUL has drafted the “Assisted Reproductive Technology Disclosure and Risk Reduction Act,” which is available here.