Social Security Takes IVF Dispute to Washington

(CN) - The Supreme Court on Monday took up a Social Security case involving a widow who used her late husband's frozen sperm to conceive twins, born 18 months after their father's death.

The 3rd Circuit ruled last year that the twins, B.N.C. and K.N.C., must be considered children under the Social Security Act as the "undisputed biological" offspring of a deceased wage earner, Robert Capato, and his widow, Karen.

On remand, a New Jersey federal judge would have to determine whether, "as of the date of Mr. Capato's death, his children were dependent or deemed dependent on him, the final requisite of the act remaining to be satisfied."

Social Security Commissioner Michael Astrue petitioned the Supreme Court to review.

The Philadelphia-based federal appeals court had nevertheless declined to find an equal protection issue in the case.

Robert, who had two children from a prior marriage, was diagnosed with esophageal cancer shortly after marrying Karen in 1999.

Hoping to start a family, but knowing that chemotherapy treatment might make Robert sterile, Robert and Karen deposited his semen at a sperm bank. Karen also conceived a son naturally with Robert and gave birth to that child in 2001.

When Robert died in March 2002, he named his three children as beneficiaries. The will did not contain a provision for any "unborn children."

Shortly thereafter, Karen used in vitro fertilization using her late husband's frozen sperm to conceive twins, born 18 months after Robert's death.

The Social Security Administration refused, however, to grant Karen insurance benefits on the twins' behalf. She appealed to the 3rd Circuit after an administrative law judge affirmed.

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