Lib Win: SCOTUS OK’S Vitro, Contract Legitimacy, Not Reverse

Media are reporting SCOTUS  ruled against inheritance by post-mortem vitro children–those conceived after  the death of  a parent–and pundits, presumably looking at centralization to save the day, are claiming it’s legal uncharted territory and wondering if such children should be allowed. This is the reverse of what has happened.

During the 1970’s on Libertarians in Florida pioneered a tactic where they convinced many legislators to support controversial social issues if they were allowed in an ‘inter se’ (between ourselves)  contract, statement or will. Thus people may enter do not resuscitate orders, move almost all government functions to neighborhood associations, and have unusual  inheritances, and thus also post-mortem child inheritances. This put contrary statutes against de facto public policy and strengthened Libertarian lawsuits where libertarians encourage deference to local authority and from there contractual exceptions.

In a Florida case where the question was benefits for a post-mortem child, SCOTUS did not rule against inheritances–it in fact set the precedent, deferring to the benefits agency, which deferred to Florida law, which deferred to an express  will. The requisite will clause was lacking so the child didn’t inherit–somehwat similar to the Schiavo case where lack of instructions created a national sensation–but had it been in place the child would have almost certyainly received the benefit, say Florida attorneys familiar with that area of law. (There was an unlitigated issue reported that the will attorney did not follow or was not aware of the father’s notarized instructions to see to such cases; in court it was argued that Florida had conflicting statutes.)

The moral of the story is use the right for such documents to handle potentially troublesome issues…and recognizing this is another step forward on several fronts.


Thanks to fertility treatment, babies are conceived these days in so many different ways that it can be hard to keep track. Regardless of how they came into being, when they’re born, they’re all children — except when the Supreme Court rules that they’re not.

This week, the court issued a unanimous ruling that should make fertility clinics, advocates, cancer patients and parents who conceived their children via assisted reproductive technology take note: in the case of Astrue v. Capato, the court decided that a set of twins conceived with the help of fertility treatment after their father died of cancer were not eligible for Social Security survivor benefits.

In 2003, the twins were born to mother Karen Capato — 18 months after their father, Robert Capato, had succumbed to cancer of the esophagus. Robert Capato had banked sperm before beginning his treatment to safeguard his fertility; as he grew sicker, he and his wife decided that she should use his sperm to conceive a sibling for their toddler son.

(MORE: Who Is a Child? The Supreme Court Decides)

When Karen Capato — as a new widow and a new mother — applied for Social Security benefits for the twins, she was denied on the basis that the law in Florida, where they lived, allowed only children named in a last will and testament to inherit property.

Not having access to the benefits will impact these families,” says Laura Riley, a staff attorney at the Cancer Legal Resource Center, a program of the Disability Rights Legal Center at Loyola Law School. “It discriminates against these children based on the circumstances of their conception.”

The Supreme Court didn’t appear to see it that way, choosing to focus on state law. Karen Capato’s attorney, Charles Rothfeld, said the ruling means that the decision about whether to consider a posthumously conceived child a legitimate heir will now be left to the interpretation of individual states. “It does seem peculiar that federal entitlement to benefits will be governed by state rules,” he says. “There is no uniform rule across the country. The question now is, Will Congress get involved to provide for a unified rule?”

Rothfeld isn’t sure how many children are potentially affected by this ruling, but the number is sure to keep growing as assisted reproduction and fertility preservation for cancer patients increase in popularity. “There are a lot of other children in similar situations,” says Riley.

(MORE: My Sister, My Surrogate: After Battling Cancer, One Woman Receives the Ultimate Mother’s Day Gift)

Julie Shapiro, a law professor at Seattle University who blogs about the intersection of law and family, points out that this is uncharted territory:

It’s only since the advent of the technology that allows for freezing of sperm that you can have posthumously conceived children. And it’s clear that when Congress enacted the existing statutes, it wasn’t thinking about that problem. (The statutes were enacted before the technology existed.)

For the Capato kids, all is not necessarily lost. The case is now going back to the Court of Appeals to determine domicile — where the family is considered to have lived — at the time of Robert Capato’s death. While Florida’s law does not permit posthumously conceived children to inherit, other states have more flexible laws — leaving open the possibility that they could eventually wind up with the benefits that clearly would have been theirs had they been conceived before their father died.

MORE: Should Men Be Allowed to Father Children After They’re Dead?

Bonnie Rochman is a reporter at TIME. Find her on Twitter at @brochman. You can also continue the discussion on TIME’s Facebook page and on Twitter at @TIME.

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One comment

  1. Tyree Carlisle · · Reply

    Fertility clinics are really very useful these days as more and more older women wants to give birth. Older women have a harder time conceiving without medical intervention. ‘:;”

    Warmest wishes“>

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