April 18, 2024

US Supreme Court wrestles with posthumous conception

The US Supreme Court grappled this week for the first time with “posthumous conception”.

Karen Capato gave birth to twins in 2003 – 18 months after the death of her husband, Robert Capato. Are her twins eligible for “survivor benefits”? The US Supreme Court grappled this week for the first time with “posthumous conception”.

The Capatos married in 1999, and Robert was diagnosed with oesophegal cancer shortly afterwards. For fear that treatment might render him sterile, the Capatos began depositing sperm at a Florida sperm bank. They had a naturally conceived son in 2001, but they grew increasingly worried as Robert’s condition worsened. They signed a notarised statement that any children “born to us, who were conceived by the use of our embryos” shall be in all aspects their children and entitled to their property.

However, this clause was not included in Robert Capato’s will and Social Security survivor benefits were denied to the twins. Apart from reconciling Federal and State law, the case shows how many questions hang over children conceived with artificial reproductive technology. Here is what some of the Justices said in an initial hearing, as reported by the Washington Post:

  • What about a child born into a marriage but not a biological child, asked Justice Sonia Sotomayor. She wondered what would be the outcome if Karen Capato remarried but used her deceased husband’s frozen sperm to conceive.
  • Justice Ruth Bader Ginsburg pressed Rothfeld on whether the marriage between the Capatos ended with his death.
  • Justice Antonin Scalia wondered how children could be “survivors” if they were not conceived before their father’s death.
  • “It’s a mess,” said Justice Elena Kagan.

An amicus brief was filed by Jennifer Lahl, of the Center for Bioethics and Culture Network, and others who urged the Court to decide the case in a way which took into account the dangers of IVF. One is a former IVF practitioner, Dr Anthony J. Caruso, who worked in the field for 15 years before abandoning it in disgust in 2010. It contains an interesting summary of the drawbacks of IVF. ~ Washington Post, Mar 20

Jared Yee
posthumous conception