The Catholic University of America


Patchwork State Laws Make Social Security Benefits
Iffy for Posthumously-Born Children


Knowing his cancer is incurable, a man elects to freeze a sample of his sperm to help his surviving spouse conceive a child after his death. Today’s sophisticated reproductive technologies make this and like scenarios increasingly common, but is the law keeping up with reality?
Not as well as it could, said Kelsey Darnell, a third-year Catholic University law school whose Feb. 15 address, “Legislation Frozen in Time: Persistent Problems with Attempts at Uniformity for Social Security Inheritance Rights of Posthumous Children,” was the first of three Student Scholar Series presentation for the 2012 academic year.
Speaking before a mix of faculty members and fellow students at a luncheon in the law school’s room 220, Darnell argued that Social Security benefits paid to children born after the death of a parent are overly responsive to the whims of state law, which vary widely around the country, and are sometimes hugely unfair.
The problem, says Darnell, is that the Social Security Administration has traditionally deferred to state preferences in how benefits are administered in these cases.
“State laws have a huge impact on whether the child receives benefits under the federal scheme,” said Darnell.
The state-by-state approach may finally be coming to an end. On March 19, the Supreme Court will hear Astrue v. Capato, a case from the 3rd Circuit that confronts the issue of whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that biological parent under applicable state intestacy law, is eligible for child survivor benefits under Title II of the Social Security Act.
The brainchild of Professor A.G. Harmon, the Columbus School of Law Student Scholar Series was instituted in 2008-2009 to recognize notable legal scholarship produced by students, and to hone their presentation skills in a professional, conference-style setting.
Professor Lucia Silecchia served as the respondent to Darnell’s presentation.