Who are your children?

Monday, June 25th, 2012

Since the invention of in vitro fertilization, interesting legal questions surrounding the process and the children born have occurred frequently. The State of Maryland and the United States Supreme Court both addressed the issue of posthumously conceived children this spring and the changes overlap with Social Security survivor benefits for those children.

The definition of “child” in the State code will include a child conceived from the genetic material of a decedent after such person’s death if such person consents in writing on or after October 1, 2012 (i) to have his or her genetic material used for posthumous conception; and (ii) to be the parent of a child posthumously conceived with the decedent’s genetic material. Also, the child must be conceived within 2 years of the decedent’s death for the posthumous child to be considered a child of the decedent.

By defining child to include posthumously conceived children as long as the criteria above are met, the State will allow these children to inherit from their deceased parents under state intestacy law.

In May, the United States Supreme Court published their decision in Astrue v Capato, which states that it is proper for the Social Security Administration to apply state intestacy laws to determine whether a posthumously conceived applicant is eligible for Social Security survivors’ benefits as a child of the deceased parent.

Therefore, as of October 1, 2012, so long as all requirements are met, a posthumously conceived child shall be considered a child of the decedent. In addition, as a result of the decision in Astrue v Capato, such child will be eligible for Social Security survivors’ benefits.