Practitioners—if there’s any chance that your client might, and wishes to, conceive a child posthumously, make sure to get his intent spelled out clearly on paper.
State laws in this area vary widely, leading to dramatically different results when posthumously conceived children seek survivor benefits. Witness the diametrically opposed results in decisions issued by the U.S. Court of Appeals for the Ninth Circuit: a posthumous baby born in California was denied Social Security benefits (Vernoff v. Astrue, 08-55049 (9th Cir. 6-17-2009)); one born in Arizona received the benefits (Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004)).
Here’s how it happened and how the Uniform Probate Code (UPC) suggests states handle the matter in the future:
In Vernoff,1 the Ninth Circuit, applying California law, on June 17, 2009 denied Social Security survivor benefits to Brandalynn Vernoff, a posthumously conceived child in California. The district court held that Brandalynn did not establish that she was dependent upon the deceased, due to her posthumous conception. Her mother, Gabriela Vernoff, appealed the district court’s decision, but the Ninth Circuit affirmed.
Gabriela was an immigrant housekeeper from Mexico and started work in 1987 at the home of Wally and Vidalia Vernoff. This is where she met Bruce Vernoff, her future husband, who worked as a security guard. After three years of dating, Bruce asked Gabriela to move in with him, and she responded by telling him to marry her. They did so on March 20, 1990. Shortly after they were married, they were in a serious car accident. Gabriella broke a rib and Bruce broke his leg that required six surgeries.
Five years later, Gabriela found Bruce dead the morning after he had a night out with friends. The coroner concluded that Bruce's death was a result of an accidental overdose of mood-elevating drugs that he was using to taper off the strong painkillers he had been taking after his leg surgeries.
After his death, Gabriela had five vials of Bruce’s semen extracted. Bruce’s parents paid for the procedures, which cost $35,000. According to the facts of the case, Bruce and Gabriela had never contemplated having a child postmortem.
In June 1998, Gabriela used Bruce’s sperm for an in vitro fertilization procedure and as a result, a baby girl named Brandalynn was born on March 17, 1999. Seven months after Brandalynn was born, Gabriela filed a claim for child survivor benefits with the Social Security Administration (SSA).
Her claim was denied twice before appealing to the district court, where it was also denied.
The Vernoff decision was surprising given that, five years earlier, the Ninth Circuit, applying Arizona law, allowed a child who was posthumously conceived to receive Social Security benefits.
In that case, Rhonda Gillett-Netting’s husband, Robert Netting, was diagnosed with cancer in December 1994. At the time of the diagnosis, the two were trying to have a baby together. Rhonda suffered from fertility problems resulting in her having two miscarriages.
Before undergoing chemotherapy, Robert deposited his semen at the University of Arizona Health Services Center. He did so because he believed that the chemotherapy would leave him sterile. Robert succumbed to cancer on Feb. 4, 1995, less than two months after being diagnosed. Before he died, Robert confirmed that he wanted Rhonda to have his child with his frozen sperm after he died.
Eight months after Robert’s death, Rhonda had an in vitro fertilization procedure. The result: twins, Juliet and Piers Netting, born on Aug. 6, 1996.
Thirteen days after the twins were born, Rhonda filed for Social Security benefits. The SSA denied the claim, as did an administrative law judge. The judge held that Juliet and Piers were not entitled to benefits because they were not dependent on Robert at the time of his death. According to that judge, children conceived after a wage earner’s death are not deemed dependent.
Rhonda filed a complaint in federal district court; among her claims was an argument that the twins were being denied equal protection of the law. The district court granted summary judgment for the SSA, holding that the twins were not Robert’s under the Social Security Act and they were not dependent on him or his income at the time of his death. Rhonda appealed to the Ninth Circuit.
The Ninth Circuit held that even in light of the SSA’s interpretation, a “child” is defined as a natural or biological child of the insured, which it found the twins were. Second, the court found that the twins were dependents because they were Robert’s legitimate children under state law that says a child born by artificial insemination is still considered a natural and biological child of the parent. Thus, the court held that the twins could receive social security benefits.
How can the same court come to two different conclusions?
The Ninth Circuit applied the laws of two different states in these opinions, California (Vernoff) and Arizona (Gillett-Netting). Marked differences in those states’ laws explain these two disparate holdings.
First, on the issue of consent and intent, in Gillett-Netting, the facts clearly indicate that the decedent intended his wife to use his frozen sperm to conceive a child. Such an indication, courts have held, demonstrates a willingness to support the child. The same was not true in Vernoff.
Second, absent consent/intent, Gabriela Vernoff needed to show that Brandalynn was Bruce’s dependent by proving that:
(a) Brandalynn was dependent on Bruce when he died, or
(b) that under state law, Bruce is deemed to be Brandalynn’s parent and/or that Brandalynn was Bruce’s heir.
This last point is where the law of California is vastly different from that of Arizona.
In Arizona, where the Gillett-Netting case arose, the law clearly states that every child is the “legitimate child of its natural parents” (Ariz. Rev. Stat. Section 8-601). Robert Netting was the twins’ “natural parent” as the “biological father of a child born using artificial insemination of his spouse” (Ariz. Rev. Stat. Section 25-501).
In other words, Arizona recognizes that biological parenthood is sufficient to establish natural parenthood.
California’s definition is less a question of biology and more one of family units and the existence of a parent-child relationship that, of course, Bruce and Brandalynn did not have.
In other words, California law does not equate natural parent status with biological parenthood such that a mere biological relationship is sufficient under California law to grant status as a natural parent. This is primarily out of the California legislature’s interest in protecting “the welfare of the child and the integrity of the family.”
California law does allow for a paternity finding in the case of artificial insemination, but only in the case where the father has evidenced his intent in an assisted reproduction agreement (Cal. Fam. Code Section 7630(f)).
THE UPC WEIGHS IN
The UPC has responded with new provisions specifically addressing the issue of posthumously conceived children. Those provisions state that, for a parent-child relationship to exist with a posthumous conception, the decedent parent must have intended to be treated as a parent of the child. Ideally, that intent will be expressed in a signed document. In the absence of such a record, the decedent’s intent may be established by facts and circumstances, but the evidence must be clear and convincing. There is also a legislative note in the new provisions of the UPC that encourages states to enact a provision requiring genetic depositories to provide a consent form that would satisfy the clear and convincing evidence standard.
So, remember, get down on paper what your clients’ intentions are about possible posthumous children.
1. Because the authors don’t like to restrict themselves to staid court opinions, portions of the facts recited in this article regarding the case Vernoff v. Astrue, 08-55049 (9th Cir. 6-17-2009) are from the article “Life from Death” by Richard Jerome in People, April 19, 1999, Vol. 51, No. 14.