Supreme Court: No Benefits For Twins Conceived After Father's Death

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Unnatural By Law

Imagine giving birth to a child 18 months after your death. Karen Capato gave birth to twins conceived through in vitro fertilization using her deceased husband’s frozen sperm.

Robert Capato knew his cancer was terminal. With only months to live the married couple chose to preserve their union by creating life in the face of impending death. He died. After their twins were born, Karen Capato applied for Social Security survivors benefits, seeking government funds based on Robert Capato’s wages, while alive. Her claim was denied. The appeal resulted in a U.S. Supreme Court case decided Monday, denying survivors’ benefits.

Social Security’s survivors’ program is financial assistance to the children of a deceased parent. Benefits are available until the child reaches 18, and longer if he or she attends college. The amount of financial benefit is based on the cumulative income of the deceased wage earner. Any child born to a parent, now deceased, who was a wage earner, is covered by the Social Security Act. Robert Capato met all of the criteria.

The case turns on whether Mr. Capato’s children, conceived after his death, qualify for Social Security survivors benefits. He never knew they existed. Yet, they are children he had created through in vitro fertilization, and planned to be born, after his death. Karen Capato wanted Social Security Act to be extended to cover her children. The government looked to tradition. The Court looked to the definition of a child. And, more specifically, a child conceived under such unique circumstances.

The nation’s highest Court wrestled with several cases that pit natural against the unnatural, this term. Its arguments of claimants brought into doubt fundamental definitions of child, person, and individual. In one such case, Asid Mohamad v. the Palestinian Authority, the Court was asked to decide if a political entity, the Palestinian Liberation Organization, could be a person. The Court ultimately had to decide if Congress meant for a corporation to be held liable for murder.

In 1995, Asid Mohamad’s father, Azzam Rahim, traveled to the Palestinian West Bank to visit relatives. Mr. Rahim was a naturalized American citizen. While enjoying a meal at an outdoor café soldiers from the Palestinian Liberation Organization arrested him. That was the last time family members would see him alive. It is believed Mr. Rahim was taken to the Jericho prison, tortured, and killed. His body was deposited at the doorstep of family members.

Mr. Mohamad brought a legal action on behalf of his father under the Torture Victim Protection Act of 1991. The Torture Victim Act provides monetary damages to victims of torture and extrajudicial killing. However, the Torture Victim Act only confers liability on individuals or persons who commit these acts. Once again, the Court was asked to expand a fundamental matter of human existence, and find the political entity, the Palestinian Liberation Organization, a person.

In the end, the Court ruled only natural persons and human individuals can commit torture. The justices were unanimous in their ruling against Mohamad. Instead, of expanding the definition of person to include a corporation, they followed the ordinary meaning of the word. The Torture Victim Act authorizes lawsuits against only “natural persons,” they found. Individuals who comprise a corporation or political entity can commit tortuous acts. However, the entity itself cannot.

Likewise, the U.S. Supreme Court ruled against Karen Capato. It concluded that Social Security survivors’ benefits were intended only for those offspring that could have inherited from the wage earner during his lifetime. The Court relied on the laws of Florida, the state of residence for Robert Capato at his death. Since his twins could not have inherited from Robert Capato’s estate then they cannot receive survivor benefits based on his wages.

Both Mr. Mohamad and Mrs. Capato may have been encouraged to believe otherwise by the Court’s decision in Citizens United. In that case, the Court ruled corporate entities had freedom of speech resulting in the creation of corporate super-PACs, Political Action Committees. Although unnatural entities these super-PACS are set on a very natural pursuit of political power. 

It is unnatural for twins to be born 18 months after death. However, in 1978, Louise Joy Brown, was considered unnatural. She was the first successful “test tube” baby, creating an international sensation. Today, over 1% of all births in the United States use IVF or some kind of assisted reproductive technology based on data from the Centers for Disease Control.

The Court seems firmly moored to traditional definitions and the plain meaning of words. Citizens United may have been a decision based on the unique composition of the Court at that time. Because based on the Mohamad and Capato cases, children must be conceived during the lifetimes of both parents. Individuals are human. And, for now, only people can commit torture.      
Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present” and a journalist covering the U.S. Supreme Court. Her forthcoming book is “Black Women and the Law: Salem Witch Trials to Civil Rights Activists - A Legal History.”

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