IS A CHILD BORN 18 MONTHS AFTER YOUR DEATH, YOUR CHILD?

Is a child born eighteen months after a person’s death that person’s “child”? If so, is that child dependent on the deceased parent?

These questions are no longer the exclusive providence of metaphysics. In a recently decided case entitled Gillett-Netting versus Barnart, a federal court had to answer these seemingly philosophical questions.

With advances in technology comes the ability to sire children absent traditional intercourse. Mr. Netting who was diagnosed with cancer placed his semen on deposit with the University of Arizona Health Science Center, before undergoing chemotherapy treatment. After his death, his wife’s eggs were successfully fertilized with his semen, and the resulting embryos were transferred to the wife. Nine months later, the wife gave birth to twins.

The wife filed with the Social Security Administration for children’s insurance benefits. Under the Social Security Act, every child is entitled to benefits if certain criteria are established. The person filing for benefits must be the “child” of an individual who died fully insured, the child must be unmarried and a minor (or disabled) at the time application is made, and the child must have been dependent on the insured person.

Once these criteria are established to the satisfaction of the Social Security Administration, the child is entitled to derivative Social Security benefits, that is benefits that derive from another individual’s – the parent’s – work history. Most people think of Social Security benefits as benefits that a person doesn’t receive until he is of retirement age, that is, age 65, but Social Security benefits are actually called Old Age, Survivor’s, and Disability Insurance. Only one of those benefit-types is retirement based “Old Age.” The other two benefit-types are for disabled individuals and for family members, such as, dependent children and widows.

In the Netting case, both the Social Security Administration and the federal trial court denied benefits to the children. The Social Security Administration held that the children were not dependent upon Mr. Netting, since, according to the Administration, the last possible time to determine dependency was at the time of Mr. Netting’s death. In other words, according to the Administration, since the children were not in existence at the time of Mr. Netting’s death, the children could not possibly have been dependent upon Mr. Netting for support.

The federal trial court went one step further. The trial court held that the twins were not Mr. Netting’s “children,” at least not under the definition contained in the Social Security Act, and were not dependent upon Mr. Netting.

But a federal appeal court reversed these decisions. The appeals court held that the twins were the children of Mr. Netting and that the Social Security Act presumed that minor children of fully insured worker were dependent upon the deceased worker. As such, the twins are entitled to survivor’s benefits and will continue to receive those benefits for the remainder of their lives.

The court addressed a situation in which a woman has a child through the process of in-vitro fertilization when the man’s semen is not that of her spouse. For instance, a woman uses semen from an anonymous or semi-anonymous donator. If this individual who donated the semen died would the children born using his semen be entitled to Social Security benefits based upon his earnings history? The court said no, since those children would not be the “children” of the anonymous donor under State law and, therefore, would not be the children of the donor for purposes of the Social Security Act.

Although the Netting decision will, undoubtedly, affect the lives of the Netting children and will have an impact on other individuals’ lives, I think it is more of an interesting case than a case that will have a wide impact. And, I think it is interesting for what it reveals about the law – The law must bend and shape itself to changing times. The law, like the society it was designed to govern, must change with the times.

Family dynamics don’t always fit neatly into legal categories. When definitions matter, small details can change who is included and who is not. Understanding how those lines are drawn can make a meaningful difference in how plans unfold.