Next week, Supreme Court justices will begin deciding whether President Obama’s health-care reforms live or die. But if you think that’s ambitious, consider what the modest jurists were debating on Monday: what Americans are allowed to do after they die.
Specifically, the question before the court was this: whether a dead man can conceive children.
This odd point of law came before the court after a woman, Karen Capato, gave birth to twins 18 months after her husband died of cancer. She had used sperm he deposited when he was still alive, and she was seeking his Social Security survivor benefits for the kids.
The Constitution is silent on the question of posthumous conception, in large part because people back then did not sire children after death. In addition, the relevant Social Security law, written in 1939, does not get into questions of whether a surviving “child” includes one fertilized in vitro. In other words, the justices pretty much had to wing it.
The transcript of Monday morning’s oral argument before the High Court included, in alphabetical order, the words “illegitimate,” “insemination,” “marital,” “offspring,” “reproduced,” “reproduction,” “reproductive,” “sperm,” “unmarried,” “wedlock,” “wife” and “wives.” And that’s not even getting into Justice Sonia Sotomayor’s description of “biological input” into the procreative process.
Clearly, the justices were on another of their field trips from their judicial chambers to Americans’ bedchambers.
“Let’s assume Ms. Capato remarried but used her deceased husband’s sperm to birth two children,” Sotomayor posited. “Would they qualify for survivor benefits even though she is now remarried?”
“What happens if the decedent is the mother?” Sotomayor also wanted to know. “Does marriage matter only if it’s the father?”
The justice was not done forming new conception concepts. “What if you are a sperm donor? Does any offspring that sperm donor have qualify?”
“What if,” Chief Justice John Roberts posed, “the Capato twins were conceived four years after the death in this case? Would your argument be the same?”
And Justice Ruth Bader Ginsburg asked whether people in 1939 would have “understood that the marriage ends when a parent dies.”
The lawyers dutifully chased each scenario. “Today there are many cases in which biological parentage is not determinative of legal parentage,” argued administration lawyer Eric Miller, defending the Social Security’s decision not to pay benefits.
The argument was at once picayune (not many babies are conceived with a dead parent’s seed) and profound (the Justices have to resolve the definition of what a child is), and the case raised questions of federal versus state powers.
But mostly the case shows the struggle of an 18th-century legal system to keep up with 21st-century technology. As Justice Samuel Alito noted, “they never had any inkling about the situation that has arisen in this case” when members of Congress wrote the law.
The phenomenon is happening more often, and with more consequence — notably in the area of abortion, where legal standards have been outstripped by technologies such as the morning-after pill and the ability to make younger fetuses viable.
On the matter of posthumous conception, at least, justices on both right and left seemed disinclined to guess about what long-dead lawmakers would have thought about not-yet-invented technologies.
Charles Rothfeld, arguing for Capato, said lawmakers drafting Social Security in the 1930s only meant to include children of married parents in their definition of child, because that was “the paradigm of a child at that time.”
Justice Antonin Scalia wasn’t buying that. “When Congress says child, child means child, and the mere fact that Congress wrote that at an age when most children were indeed children of married people doesn’t change the word ‘child,’” he argued.
Justice Stephen Breyer raised a more practical objection. “There are already children who are eating up all of the money” in the survivor-benefit program, he said. “And then some new person shows up and you have to take the money away from the other children in order to give it to this new child. And all the time, you don’t know if that’s what the parent who was dead really wanted.”
Ultimately, Roberts said, the child-bearing widow loses the case if the law in question is ambiguous. “Is there any reason we shouldn’t conclude based on the last hour that it’s at least ambiguous?”
“It’s a mess!” answered Justice Elena Kagan.
“I think the problem is that we’re dealing with new technologies that Congress … wasn’t anticipating at the time,” Rothfeld allowed. “Congress would not have specifically had in mind, contemplated, the question of posthumous conception.”
Dana Milbank’s email address is danamilbank@washpost.com.
So she could afford the use of the stored sperm but wants welfare anyway. I know exactly what the founders would say. The government should not be involved in the public financial issues or there medical ones. All one has to do is read the founders papers and it is crystal clear that SS welfare and 99.999 percent of all government programs we have today where not wanted nor permitted by them. Such is our liberal country.
So since the founders could not have conceived of modern automatic weapons, you ought to give them up?
I would happily give up some gun rights for sensible gun rights if the left in this country would start taking a moderate approach to the problems in this country.
So, you agree that current “gun rights” in this country are not sensible.
I would agree that nothing is very sensible in this country right now and all people regardless of background and political orientation need to start coming to some common ground soon, or we as a state and nation will become even more dysfunctional. Seems like all camps are digging in and fighting for their cause or core values, and no middle ground can be achieved. It’s a “my way or the highway” mentality, and it’s killing us as a nation. Personal responsibility, and motivation to succeed has gone by the wayside. It’s high time for all people to start seeing the big picture and not just their picture. So yes, I would think some common sense issues with gun laws need to be readdressed, and I’m a gun owner, but far from a fanatic. BTW, Automatic weapons aren’t commonly obtainable. You need to jump through hoops to get the necessary permits, then have the money for a class 3 weapon which runs well into several thousand dollars. I believe the poster was referring to semi automatic weapons.
We used to all pull on the same end of the rope. Extremists that only care about themselves and their agendas have turned it into a tug-of-war. Not a good sign.
Agreed. Regardless of ones beliefs or political orientation, common ground needs to happen soon. There are enough societies that despise Americans, it’s getting bad when we despise each other.
Yes, I meant semi-automatic. My point though is that if you want to criticize a certain behavior, you ought to do it neutrally, not just when it is convenient. If you’re going to hold liberals to the standard of “what would the founders say?” then you should ask yourself the same things. I think the selective application of these kind of critiques contributes greatly to polarization.
I should first state that I think it’s fundamentally ABSURD for the mother to claim that these posthumously conceived children have any right to survivor benefits. The law was CLEARLY intended to help children whose working parent died and left them without that income. I suspect the SC will rule unanimously on this one, and make it clear that this kind of nonsense obviously periodically must be defined by the Supreme Court, but it isn’t worth too much debate or consideration past a single day of oral arguments and a tightly-written decision.
THAT SAID… It’s not effing “WELFARE!” Social Security is a program that workers pay into for decades, and then in most cases they benefit from the system after they retire very late in life. Does that sound like welfare, or does that sound like a government run retirement system? The difference between something like SS and food stamps is that workers have to EARN the right to their SS benefits by contributing a portion of their earned income for several years. NOT WELFARE!
So in the case of survivor benefits, the children are only entitled if the WORKING parent dies and has contributed enough time and money into the system. If they qualify, they receive benefits because the loss of their income-generating parent is HUGELY disruptive. Also, since the parent had already paid into the system, they are basically withdrawing early on the retirement policy because (as a dead person) obviously the worker won’t be claiming their benefits at retirement.
The same is true for workers who become severely disabled and are deemed incapable of performing ANY work; in such a case the individual has paid into the system long enough that they were on the right track to receive benefits once they retired. By suffering a permenant disabling condition, the SSA basically considers them “early retirees,” and allows them to begin to collect their benefits early.
It would seem that the understanding we should take away from this case and the dilemma it has presented to the Supreme Court is that society is not a static entity. In 250 years things change and the Constitution can only serve as a guide not as a final arbiter. That’s why the founders created the Supreme Court.