- Associated Press - Thursday, January 6, 2011

PHILADELPHIA (AP) - A New Jersey woman can seek Social Security benefits for twins conceived in vitro after her husband’s death, but she must first prove they were dependents when he died, a U.S. appeals court ruled.

Karen Capato’s lawsuit marks just the latest example of the law struggling to keep pace with technology, reproductive and otherwise.

At least four families have sued the Social Security Administration to secure benefits for children conceived after their fathers died. Three are still pending, but the agency now honors such claims in the 9th U.S. Circuit Court of Appeals, where an Arizona woman presided in a 2005 case.

Given the split, some expect the issue to reach the U.S. Supreme Court.

“We … cannot help but observe that this is, indeed, a new world,” 3rd U.S. Circuit Court Judge Maryanne Trump Barry wrote in an opinion Wednesday.

“This case _ a case that involves the rights of the posthumously conceived children of a deceased wage earner and his widow _ requires us to consider the intersection of new reproductive technologies and what is required to qualify for child survivor benefits under the Social Security Act,” she wrote.

The unanimous, three-judge panel said there is no doubt the 7-year-old twins are the biological children of Capato and her husband, Robert, who died in 2002. They were conceived using sperm frozen before he started treatment for esophageal cancer in Florida.

Reversing the lower-court judge in New Jersey, the panel said they should therefore be considered his children for Social Security purposes.

But they said Capato must now prove, under another prong of Social Security rules, that the twins were “dependent or deemed dependent” at the time of his death.

Her lawyer believes she can.

“I think most people would agree that children … are obviously dependent upon their parent,” lawyer Bernard A. Kuttner of Millburn, N.J., said Thursday. “I don’t know many newborns that are able to pay for their own food and housing and medical care.”

He believes such cases may become more common among military families, as soldiers choose to store sperm before deploying to war zones.

The Social Security Administration said it does not track the number of posthumous-conception claims it receives or, in the 9th Circuit, approves. The circuit also includes California, Nevada, Oregon, Idaho, Montana, Washington and Alaska.

Capato argued that the unequal treatment from state to state is unconstitutional, but Social Security said its dependency rules follow state inheritance laws, which vary.

Robert Capato, who ran a health-club business, died in March 2002 in Florida. The twins were born in September 2003 in New Jersey. According to testimony, Capato froze his sperm because he wanted their son born in 2001 to have a sibling. He had contemplated naming the unborn children in his will, but the only beneficiaries named are his wife, their son and his two children from a previous marriage.

Florida law expressly bars children conceived posthumously from inheritance, unless they are named in a will, according to court filings in the case. In New Jersey, they can be considered heirs, Kuttner said.

Karen Capato tried to argue that her husband was a New Jersey resident when he died, since they were planning to move there. However, U.S. District Judge Dennis M. Cavanaugh was not persuaded, noting that his will was executed in Florida. Kuttner declined to disclose where his client now lives.

The case now returns to Cavanaugh’s court. The Justice Department, which argued the case, said only that it was reviewing the opinion.

However, in a brief, Justice lawyers said eligibility rules are designed to protect government funds while helping qualified children.

“In addition to protecting the Social Security trust fund, the eligibility requirements are substantially related to the important governmental objective of using reasonable presumptions to limit benefits to those children who lost a parent’s support,” they wrote.

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