Fertility's New Legal Front

Wall Street Journal
August 3, 2010

Advances in reproductive technology that were the stuff of science fiction just a few decades ago are wreaking havoc on a corner of the Social Security system—survivor benefits for some children whose parents have died.

Every year, more babies are born stemming from sperm or embryos that have been stored for months or years. In some cases, one parent has already died, usually the father.

Although the federal government generally must pay monthly benefits to children when parents die, the law is murky on whether it has to do the same for a child conceived after a parent's death. Sometimes, the Social Security Administration pays, sometimes it doesn't. So far, the decision has largely depended on the laws in the state in which the deceased parent lived.

"We're in a brave new world here.…Technology has gone far beyond where the law ever dreamed it would," said Sonny Miller, a lawyer in Minnesota and a member of the legislative committee of the Minnesota bar association's probate and trust law section.

State laws on posthumous birth—or the birth of a child after the death of a parent—vary widely. Eleven states explicitly allow recognition of a parent-child relationship that begins with posthumous conception. The laws of most states, however, define the parent-child relationship more traditionally. For the relationship to exist, a parent must be alive at the time of conception.

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