Supreme Court Rules Against IVF Twins

Conception takes center stage in Social Security survivor benefits case.

On Monday, modern science and old laws collided when the nation’s highest court ruled for the first time in a case of “posthumous conception”.

In Astrue v. Capato, the United States Supreme Court ruled unanimously that twins conceived through in vitro fertilization after their father’s death are not eligible for Social Security survivor benefits.

Karen and Robert Capato were married in 1999. Shortly thereafter, Robert was diagnosed with esophageal cancer. Prior to undergoing chemotherapy, Robert deposited semen in a sperm bank to offset the risk of sterility. During Robert’s treatment, Karen conceived naturally and delivered a son in 2001. Unfortunately, Robert’s health deteriorated, and he died less than a year later.

To fulfill their desire to give their son siblings, Karen soon began in vitro fertilization treatments. She conceived and delivered twins 18 months following Robert’s passing. Karen subsequently applied for Social Security survivors benefits for the twins and was denied.

In the Court opinion, Justice Ginsburg wrote, “The technology that made the twins’ conception and birth possible, it is safe to say, was not contemplated by Congress when the relevant provisions of the Social Security Act (Act) originated (1939) or were amended to read as they now do (1965).”

Throughout, the opinion discusses precisely who is determined to be a “child” under the relevant federal law, which does make provisions for natural children, adopted children, step-children, grandchildren, etc. However, neither federal law nor the Court holds any inherent bias against children conceived by in vitro fertilization.

Rather, the decision apparently hinged on the fact that the children were conceived following their father’s death. Accordingly, they were never supported by him during his lifetime and are not entitled to survivor benefits, unless specifically provided for in his will or by relevant state intestacy laws.

Why does this all matter? The U.S. Supreme Court took up the question of what a child is legally entitled to from the point of conception, not from implantation, medical viability outside the mother’s womb, or birth. If a child has certain legal rights based upon conception, could it be argued that a child has legal rights from the time of conception?

In an interesting twist of irony, this question has been brought about by the widespread use of in vitro fertilization. To be sure, the question of parentage can be rather complicated today, especially in modern reproductive technology where conception is considered apart from the identities of the participants as simply as a means to an end. Donor sperm, donor eggs, and surrogacy have muddied that water far more than blended families ever could.

However, the Court’s opinion in Astrue v. Capato asserts clearly that conception has definite legal implications. For example, the Court cites that the case of a child conceived prior to the death of the father who dies while the child is in utero is provided for in federal law. Conception matters! Indeed, the words conception and conceived appear a combined 30 times in the opinion.

Is this the beginning of the highest court in the land taking up more such issues? Could further discussion of legal rights of children dependent upon conception eventually result in the realization of legal fetal personhood, or is this just an isolated blip on the radar screen? What about the Court’s decision; did the Supremes get it right or wrong? Did the Court respect or disrespect fetal dignity by denying survivor benefits to the Capato twins?

Finally, how do you think the Supreme Court would have ruled if the embryos had been created before Robert Capato passed away?  Would the discussion be focused on conception or instead shifted to implantaton? I would love to hear your opinion.


  1. Cathi De Genova says

    I think the case hinged on the fact that in order to receive survivor benefits you were first being supported by the now deceased father. In this case the twins were never supported by their father.

    • says

      Hi Cathi. Thanks for stopping by and commenting. I believe you are correct. What’s interesting is precisely why the Court asserted that point matters. Ginsburg wrote that the core purpose of the legislation was not to create some sort of general welfare program but to specifically provide one’s dependents with protection against the hardship caused by loss of earnings upon one’s death. Yet, federal law apparently provides that if a a father dies while the child is in utero, the child still benefits. To me, this seems to assert that, if the father is living, the child attains benefit rights at the point of conception.

  2. Andrew says

    It would seem that no one, even those who are directly affected by the case, can account for every possible angle, even if emotions could somehow be set aside. My first thought upon hearing about this on the radio yesterday was that SCOTUS does not want the mother (and others as a result of the precedent they would have likely created by ruling for her) to abuse the system. On the other hand, the ruling seems to be odds with governmental policies that allow other people to abuse the system. I agree that the foot needs to be put down somewhere, but lets be consistent about it.

    • says

      Hi Andrew; great to hear from you! :) I thought precisely the same thing when I read Ginsburg’s point about remembering that the path to receipt of benefits must be in line with the core purpose the benefits exist in the first place. The decision seems to draw a line limiting the governmental financial support to which one is entitled simply by one’s existence. I wonder what implications this decision might potentially have with respect to how certain federal assistance programs are administered in the future.

  3. says

    Was it the Scott Brown murder case a few years ago that also presented a glimmer of hope that the courts were ruling in favor of classifying a fetus as a person? Didn’t he murder his pregnant wife – but was found guilty of 2 counts of murder?
    The courts determined that if SOMEONE ELSE kills your child in utero it’s murder – but if you “decide to terminate your pregnancy” (all about the wording), it’s legal.
    It would be terrific if our society was inching closer to determine that life begins at conception, by establishing precedence in court cases.

    • says

      Hi Jessica! Thanks for commenting; excellent point. I believe several states have laws that provide for double homicide charges in the murder of a pregnant woman. We intuitively understand that such laws implicitly confer in utero personhood on the deceased baby. However, I think the courts generally view the death of the baby as an aggravating factor in the crime of murdering the mother, kind of like burning down the victim’s house, for example. This essentially treats the baby as the mother’s property, not a unique person, just as you suggested. Accordingly, the jump to personhood from such double homicide laws hasn’t happened, yet. However, as more such pieces of the truth leak into the justice system, the rationale against in utero personhood should only become more contrived. The veneer is wearing thin and cracking.

  4. says

    That is fascinating! I suppose that given my own belief system, I just assumed that the law conferred in utero personhood, as you said – not “the baby is the mother’s property.”
    Is the term murder instead of ‘involuntary’ homicide (of a would-be person) used? (the parentheses comment is my sarcastic comment)
    It is very fascinating/interesting.
    May the light reveal what we know to be true in our hearts!

    • says

      I don’t know. The media often report the charges as being ‘double murder’, but whether any given state law actually uses that specific terminology is anyone’s guess. If it is used, some level of personhood certainly seems to be implied. One might envision the murder of fetus could potentially have a special legal classification and carry different penalties. However, I doubt many legislators, no matter what their ideology, would be comfortable going down the slippery slope of applying different laws to various classes of persons. History tells us that’s never ended well.

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