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Children Conceived After Father’s Death Draw High Court Review

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Nov. 14 (Bloomberg) -- The U.S. Supreme Court will decide whether children conceived through in vitro fertilization after the death of their father can collect survivor benefits under the Social Security program.

In a case that will determine how a Depression-era law applies in an age of reproductive technology, the justices said today they will review a ruling that the Obama administration contends improperly expanded eligibility for benefits.

The case will address what the administration says is an increasingly relevant issue. The Social Security Administration has received more than 100 applications for survivor benefits by posthumously conceived children, and the volume has increased significantly in recent years, government lawyers said in court papers.

In the case before the justices, Robert Capato deposited semen for storage in a sperm bank after he was diagnosed with esophageal cancer in 1999. He died in 2002, and the following year his wife, Karen, used the frozen sperm to become pregnant with twins.

The legal issue turns on the multi-part definition of “child” in the 1935 Social Security Act. A federal appeals court in Philadelphia said the twins met the definition because they were undisputedly Robert Capato’s biological children.

The Social Security Administration had concluded that the analysis was a more complicated one, hinging on whether the wage-earner’s home state would let a posthumously conceived child inherit property in the absence of a will. In the Capato family’s case, the agency concluded that Robert was a resident of Florida, a state that wouldn’t permit such an inheritance.

The case, which the justices will consider and decide next year, is Astrue v. Capato, 11-159.

To contact the reporter on this story: Greg Stohr in Washington at

To contact the editor responsible for this story: Mark Silva at

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