JURIST Columnist Courtney Joslin, writing the sixth installment of a column authored by the faculty of the University of California, Davis School of Law, says that a Supreme Court decision regarding Social Security benefits for children conceived through in vitro fertilization may have implications for same-sex marriage rights...
ho is a parent? Does biology necessarily and in all circumstances make one a parent? Are biological parents and their children "at the core" of all federal benefits programs? Although the case appeared to present a rather technical statutory interpretation question, these broader questions lurked in the background of the recent Social Security benefits case decided
by the US Supreme Court — Astrue v. Capato
Overview of the Case
The case concerned the right of twin children to recover children's social security survivor benefits. The children were born to Karen Capato in September 2003. Approximately four years earlier, Karen married Robert Capato. Shortly after getting married, Robert was diagnosed with cancer and was informed that his cancer treatments might leave him infertile. Before beginning treatment, Robert deposited his semen with a sperm bank to preserve the possibility of having children with Karen who would be biologically connected to both of them. The couple ended up having one child through sexual intercourse in 2001, but this child's eligibility for benefits was not at issue in the case. Unfortunately, Robert died in 2001. After Robert's death, Karen began treatment for in vitro fertilization (IVF) using Robert's semen and her ova. IVF requires the extraction of a woman's ova from her body, which are then fertilized with sperm outside the woman's body. The fertilized ova are then transferred to a woman for gestation. Karen eventually gave birth to twin children in September 2003, 18 months after Robert's death.
Shortly after the twins were born, Karen sought Social Security survivor benefits on their behalf. These requests were denied by the Social Security Administration (SSA). This denial was affirmed by an administrative law judge and then by a federal district judge on the ground that the children were not eligible to recover under any of the definitions of "child" included in the Social Security Act ("the Act"). The US Court of Appeals for the Third Circuit reversed, holding that even though the children did not qualify under any of the explicit definitions laid out in the Act, the twins nonetheless should be considered eligible children because they were indisputably the biological children of a "deceased wage earner and his widow."
Although the mother was likely only thinking about these particular children's rights to access this particular benefits program and likely was not intending to make broader pronouncements about family law generally, the mother's argument rested on the underlying premise that biologically connected children are the "principal beneficiaries" of this federal benefits program (and presumably others).
Based on the paucity of commentary, it seems that few Supreme Court watchers or legal commentators followed the case. It appeared to present a rather narrow statutory interpretation question about the eligibility of a small group of children (children conceived through the use of assisted reproductive technology after the death of the sperm provider) to a particular federal benefit. I argue, however, that the Court's decision in this case may provide useful insights to how the Court may respond to some much broader and controversial arguments currently being asserted in the various same-sex marriage cases percolating through the court system.
The Social Security Act
The Social Security Act was enacted in 1935 to help people — particularly older people — deal with the extremely high unemployment and poverty rates seen during the Great Depression. The Act included four basic programs: a forced retirement plan for workers; a needs-based assistance program for low-income, older people; an unemployment compensation program; and a program designed to provide assistance to poor mothers and their children.
In 1939, Congress expanded the forced retirement program — Title II — to provide benefits not just to the workers, but to their dependents. This expansion "transformed Social Security from a retirement program for workers into a family-based economic security program." As President Franklin Roosevelt stated in his 1939 signing statement: "In addition to the worker himself, millions of widows and orphans will now be afforded some degree of protection in the event of his death whether before or after his retirement."
Children's Eligibility under the SSA
Pursuant to the Act, as amended in 1965, stepchildren, adopted children, and people considered "children" under the Act are entitled to child's social security survivor benefits under certain specified conditions, pursuant to 42 USC § 416(e). The Act provides several ways a person who is not a stepchild or an adopted child can establish that he or she is considered a "child" under the Act. A child is considered a child for purposes of child's social security survivor benefits if the person would be able to inherit intestate through the wage earner as a child or with the same status as a child of the person under 42 USC § 416(h)(2)(A). Alternatively, under 42 USC §416(h)(2)(B) the child is considered a child if: "[The] insured individual and the mother or father ... went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment ... would have been a valid marriage." Finally, even if neither of the first two methods apply, one can nonetheless establish that one is a child if the insured individual "acknowledged in writing that the applicant is his son or daughter," "had been decreed by a court to be the mother or father of the applicant" or "had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter" according to 42 USC §416(h)(3)(C).
Karen Capato did not argue that the twins would qualify under any of the three statutory methods outlined above. Instead, she argued that the twins did not need to fulfill any of those requirements because they were the biological offspring of two persons who had been married to each other. Such children, Karen asserted, are in a class of their own and are automatically entitled to social security children's survivor benefits. In her brief to the Supreme Court she argued: "Congress regarded such children as the principal beneficiaries of the Social Security survivorship program; indeed, Congress saw that principle as so obvious that it did not require many words to establish."
The Court's Holding
The Supreme Court swiftly and unanimously rejected the mother's arguments in an opinion authored by Associate Justice Ruth Bader Ginsburg. Nothing, Ginsburg explained, indicates that "Congress intended 'biological' parent to be prerequisite to 'child' status under" the Act. To the contrary, a review of historical context as well as state parentage law reveals that that federal government did not intend to privilege or especially protect the biological children of married couples. First, quoting the Administration's brief, Ginsburg explained that "'[i]n 1939, there was no such thing as a scientifically proven biological relationship between a child and a father, which is ... part of the reason the word 'biological' appears nowhere in the Act.'" Second, Ginsburg astutely noted that under state parentage law, a person who is biologically connected to a child is not necessarily the child's legal parent. A biological parent is not the legal parent of a child who has been adopted by another family. In addition, in many states a man who provides sperm to inseminate a woman other than his wife is not the resulting child's legal parent. Although Ginsburg did not develop this point in her opinion, the opposite is also true. There are many circumstances under which a person who is not biologically connected to a child is the child's legal parent. In all 50 states, husbands are presumed to be the legal parents of children born to their wives, even if they are not genetically connected to the child. In many states, this presumption is not rebutted by evidence that the husband is not the biological father. In the context of non-marital children, there are a number of circumstances under which an unmarried man may be considered a child's legal parent despite his lack of genetic connection to the child. This may be true, for example, under a so-called "holding out" provision, or if the man and the child's mother properly complete and do not rescind a voluntary acknowledgement of paternity.
Rather than being targeted only or especially towards biological children, Ginsburg explained, the Act was intended to benefit and protect children who were dependent upon members of a wage earning family. The aim of the Act, Ginsburg wrote, was "to provide dependent members of a wage earner's family with protections against the hardship occasioned by the law of the insured's earnings." From the Act's inception, Congress explicitly recognized that a child may be dependent upon a wage earner even if the child is not genetically connected to that wage earner. This is evidenced by, among other things, the inclusion (since the 1939 amendments adding benefits for dependents) of stepchildren and adopted children under the Act's auspices.
In the end, Ginsburg rejected Karen Capato's argument that the biological children of persons who were once married to each other fall into a class of specially protected children. Instead, under a reasonable reading of the statute — one that is fully consistent with the Act's purpose — Ginsburg held that to be qualified all children must establish eligibility under one of the three methods detailed above in the statutory scheme.
What Does All of this Have to do with Same-sex Marriage?
So, what does any of this have to do with same-sex marriage? At first blush, one may think that it has nothing to do with same-sex marriage. But, upon closer analysis, one can see that it relates quite directly to one of the primary arguments that opponents have used to justify discriminatory marriage laws. Specifically, marriage equality opponents continue to argue that states can permissibly limit marriage to opposite-sex couples because opposite-sex couples are the only ones who (potentially) can procreate without assistance and, sometimes, this procreation occurs by accident. States, the argument continues, have a greater interest in protecting — through access to the institution of marriage — those couples who have the potential to procreate by accident.
A variation of this argument has also been put forward by the members of the US House of Representatives in the recent litigation challenging Section 3 of the federal Defense of Marriage Act (DOMA). Section 3 provides that, for all federal purposes, marriage means the union of one man and one woman. The practical effect of Section 3 is that even validly married same-sex couples are denied all of the estimated [PDF] 1,138 federal rights, benefits, and protections that are extended to heterosexual spouses by virtue of their marital status. In their brief [PDF] defending the constitutionality of Section 3, various members of the House of Representatives (represented by former Solicitor General Paul Clement) argued that Congress could rationally decide to exclude all validly married same-sex spouses from access to all of the federal spousal benefits and protections based on "basic biological differences between opposite-sex sexual relationships and other relationships" (emphasis in original). The "basic biological difference," the brief explains, is that opposite-sex couples have the potential to create children, through sexual intercourse, who are biologically related to both of them, while same-sex couples do not.
This argument, however, relies on the same faulty logic as the argument put forth by Karen Capato. In deciding how to distribute benefits, the federal government does not condition, premise, or privilege eligibility based on a parent's biological connection (or lack thereof) with his or her child. Instead, the vast majority of federal benefits programs related to children and parents are designed to help families care for children, particularly in times of crisis. As Ginsburg explains with respect to the SSA, outside of these recent arguments regarding DOMA, nothing in federal law indicates that Congress intended that biological children of married spouses were intended to be the special or principal beneficiaries of these federal programs.
Courtney Joslin is an Acting Professor of Law at the University of California, Davis School of Law. Her areas of interest include family and relationship recognition, particularly focusing on same-sex and nonmarital couples. Prior to her academic career, Professor Joslin served as an attorney for the National Center for Lesbian Rights.
Suggested citation: Courtney Joslin, Defining Parenthood: Astrue v Capato and Same-Sex Marriage, JURIST - Forum, June 8, 2012, http://jurist.org/forum/2012/06/courtney-joslin-astrue-v-capato.php.
This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org