Thursday, September 15, 2011

Circuit Split Watch: Test-Tube Babies and Social Security

This article first appeared in the September 14, 2011, issue of the National Law Journal's Supreme Court Insider.

When Congress passed the Social Security Act in 1935, the idea of a child being born years after its father’s death might have provoked when-pigs-can-fly laughter. Now, through advances in science, such births are a reality, not to mention a source of controversy.

Federal appellate courts have recently split over the requirements for posthumously conceived children to receive Social Security survivor benefits. One petition for certiorari is already pending before the U.S. Supreme Court and two more could follow soon.

The most recent case in the split, decided at the end of August, is Beeler v. Astrue, from the U.S. Court of Appeals for the 8th Circuit.

Doctors diagnosed Bruce Beeler, an Iowa man in his thirties, with leukemia and recommended chemotherapy. Because he and his fiancée Patti wanted to have children, but understood that the treatment could cause sterility, Bruce had his semen banked at a fertility clinic prior to undergoing chemotherapy. He and Patti married within weeks.

Despite chemotherapy and later, a bone marrow transplant, Bruce Beeler died. Nearly two years later, Mrs. Beeler gave birth to their daughter and subsequently filed for Social Security survivor benefits on the girl’s behalf. The Social Security Administration denied the request, but a federal district court in Iowa disagreed and awarded benefits.

Judge Steven Colloton, a former Rehnquist clerk, writing for a unanimous 8th Circuit panel, reversed the district court and upheld the agency’s denial of benefits. Senior Judge Myron Bright, born in 1919, sixteen years before Social Security was enacted, and Judge Roger Wollman also sat on the panel.

The core dispute before the 8th Circuit was whether the daughter is a “child” of a deceased worker, as defined by the Social Security Act and related regulations. From Mrs. Beeler’s standpoint, the answer is simple: It is undisputed that Bruce, the deceased worker, is the biological father of the girl, so she is his child.

For the agency though, biology is not the end of the story, but a trigger to further inquiry. The next question, as the agency reads the Act, is whether the biological child could inherit under state intestacy law. If so, she is a “child” for purposes of Social Security benefits.

In this case, Iowa intestacy law did not recognize posthumously conceived children as heirs. As a result, the Beelers’ daughter did not qualify as a “child” for Social Security purposes. Iowa has since changed its law, the 8th Circuit noted, but not retroactively. The daughter also did not qualify under several other inapplicable provisions, apart from state law.

In upholding the agency’s state law inquiry, the 8th Circuit explained, it was joining the 4th Circuit on one side of a 2-2 circuit split. On the other side, the 3rd and 9th Circuits do not require further inquiry for biological children.

Three of these four federal appellate decisions are from 2011, with major actions in all three just last month. In August, the 8th Circuit ruled, the Solicitor General filed a petition for certiorari in the 3rd Circuit case, Capato ex rel. B.N.C. v. Commissioner of Social Security, and the 4th Circuit denied rehearing en banc in Schafer v. Astrue. In other words, there could soon be three cert petitions on a conflicting issue of nationwide importance pending before the Supreme Court.

New questions from new technologies are becoming a recurring theme on the Supreme Court’s docket with recent grants on subjects like GPS surveillance, DNA testing, and video games. Posthumous conception and Social Security benefits could be next.