Argument recap: Old law, new technology, and Social Security benefits

The following contribution is by Kristine S. Knaplund, Professor of Law at Pepperdine University School of Law in Malibu, California.  Professor Knaplund has written extensively on the legal and ethical issues that arise when children are conceived and born years after a genetic parent has died, including articles in the Arizona Law Review, Kansas Law Review, the Duke Journal of Gender Law and Policy, the Michigan Journal of Law Reform, and the ABA Real Property, Trust and Estate Law Journal.  She is an Academic Fellow of the American College of Trust and Estate Counsel, and serves as Vice Chair of the ABA Elder Law, Disability Planning and Bioethics Group.

When Congress enacted the Social Security Act in 1939, providing that “[t]he term ‘child’ means (1) the child or legally adopted child of an individual,” who did Congress intend to include as a child?  Is the meaning of “child” plain or ambiguous?  In Monday’s oral argument in Astrue v. Capato, counsel for both sides valiantly delved into Congress’s mindset when the law was enacted, while the Justices attempted to bring them into the twenty-first-century world of assisted reproduction, postmortem conception, and genetic testing.    As Justice Breyer observed to Charles Rothfeld, who argued the case on behalf of the respondents, “[y]ou want us to… apply this old law to new technology, [and] just overlook all these complications.”

The case involves two children conceived after their father’s death using his frozen sperm; their application for Social Security Survivor benefits was denied on the ground that they did not qualify as his “children” because under applicable state law they were not entitled to inherit in intestacy.  The Third Circuit reversed, holding that the undisputed biological children of a deceased wage earner and his widow are “children” within the meaning of the Social Security Act.  For the Third Circuit, in accord with the Ninth Circuit, any inquiry as to whether the Capato twins would inherit under state intestacy law was irrelevant to the determination that Robert Capato is their father.

Eric Miller, Assistant to the Solicitor General, argued on behalf of Michael Astrue, the Commissioner of Social Security, that when the Social Security Act was enacted without a definition of the word “child” in Section 416(e), Congress intended that every child, even one born during the marriage whose parentage was not in doubt, must demonstrate that she qualifies as a child under state law.  That position is a curious one, given that in this case, the applicants were clearly not born during the marriage:  the Capato twins were born eighteen months after their father’s death.    While this led to a brief discussion with Justice Alito on whether a marital child would be denied benefits if a state passed a law saying that no child born during the marriage could inherit in intestacy (answer:  the child might qualify through another provision of Section 416(h)), most of the questioning from the bench sought to reconcile the definition of a child in subsection (h) with the “child is a child” definition in subsection (e).

The government maintains that, to define a child, courts should look at three sections of the Act, while the Capatos contend that only the first two should be considered.  Section 402(d) provides that “[e]very child (as defined in § 416(e) of this title) . . . of an individual who dies a fully or currently insured individual . . . shall be entitled to a child’s insurance benefit.”   Section 416(e) provides that “[t]he term ‘child’ means (1) the child or legally adopted child of an individual,”  while Section 416(h) states, “In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual . . . was domiciled at the time of his death.”  Mr. Miller advocated for SSA’s interpretation that a “child” must satisfy one of the provisions in Section 416(h), a position entitled to Chevron deference because “child” in Section 416(e) is ambiguous.  In construing subsection (e) together with subsection (h), he argued, there was no need for Congress to refer to subsection (h) in Section 416(e) because subsection (h) specifically says it applies to the entire subchapter, including subsection (e).  Other provisions in the Social Security Act, such as the definitions of “widow” and “widower,” are similarly placed outside of Section 416(e).

Representing the Capatos, Charles Rothfeld of Mayer Brown LLP argued that, when Congress said “child” in 1939, the unambiguous meaning was the “biological child of married parents” since over ninety-five percent of children were born in wedlock, a position that drew considerable questioning from the bench.  Justice Scalia rejected Mr. Rothfeld’s requirement that the parents be married, insisting that a “child is a child.”  Justice Sotomayor and Chief Justice Roberts observed that according to the respondents’ definition, if Mrs. Capato remarried and then used her deceased first husband’s sperm to have a child, that child could qualify for Social Security as Robert Capato’s child, even though under state law the child’s presumed father would be Mrs. Capato’s second husband.  Several Justices had different views of the plain meaning of the word child:  Justice Sotomayor observed that Section 416(e) does not contain either the word “biological” or the word “married,”  while Justices Ginsburg and Kagan, like Justice Scalia, questioned whether “child” could mean any biological child, whether in or out of wedlock.  By limiting the definition to the biological children of a married couple, Justice Kagan worried that the court could run into equal protection problems in discriminating against nonmarital children.  In any event, are the Capato twins the children of a married couple?  As Justice Ginsburg noted, death ends a marriage; that’s why the common law included a separate presumption of paternity for a child conceived during the marriage but born within nine months of the husband’s death.

The temptation to cut to the chase proved irresistible for two Justices.  Even if the applicants are Robert Capato’s “children,” they still must prove that they were dependent, or deemed dependent, on the wage earner at the time of his death.  The Third Circuit had remanded the case on this issue, but Justice Kennedy posed the question to Mr. Miller, while Justice Scalia asked both Mr. Miller and Mr. Rothfeld how a child born eighteen months after the death of a parent could be a “survivor” and thus dependent. (The answer:  If state law either provides that the child is eligible to inherit in intestacy or declares the child to be legitimate and thus deemed dependent.  So we’re back to state law again!).

Chief Justice Roberts may have summed up the dilemma faced by the respondents, and the likelihood of a ruling for the government.  Addressing Mr. Rothfeld, he observed:  “Counsel, under Chevron, you lose if the statute is ambiguous.  Is there any reason we shouldn’t conclude based on the last hour that it’s at least ambiguous?”