Academic journal article Journal of Law and Health

Liberty, Equality, and Parentage in the Era of Posthumous Conception

Academic journal article Journal of Law and Health

Liberty, Equality, and Parentage in the Era of Posthumous Conception

Article excerpt

I. INTRODUCTION II. UNDERSTANDING POSTHUMOUS CONCEPTION    A. Posthumous Conception and Legal Parentage    B. Astrue v. Capato III. IMPLICATIONS OF POSTHUMOUS CONCEPTION    A. Liberty Rights of Prospective Posthumous Conceivers    B. Equality Rights of Posthumously Conceived Children IV. DIMINISHING THE LAW'S FOCUS ON PARENTAGE    A. From Parents and Children to Providers and Dependents    B. Allocating Benefits in a Less Parent-Focused Regime V. CONCLUSION 


Liberty and equality have always had a complex interrelationship. Liberty protects individual choice, while equality protects individuals from discrimination based on statuses about which they have no choice. Examining liberty and equality in the context of parent-child relationships adds an additional layer of complexity. When a woman exercises her liberty to procreate by using her deceased husband's genetic material, her children may experience inequality due to their status as posthumously conceived. (1) such children are, in some states, denied social security survivors benefits because their deceased genetic parent is not viewed as their legal parent. (2) This was the case with Karen Capato's twins, who were conceived using her deceased husband's sperm and subsequently denied the survivors benefits that their older (non-posthumously conceived) brother was able to receive because their genetic father was not viewed as their legal parent. (3) When Karen Capato's case reached the Supreme Court in 2012, her equal protection arguments were rejected and survivors benefits were withheld on the basis that the twins were not Robert Capato's "children." (4)

This essay uses Astrue v. Capato as a platform to examine how liberty and equality interact within parent-child relationships. It observes that as prospective parents have experienced an increase in liberty due to new reproductive technologies the children they create have not necessarily experienced a commensurate increase in equality. The law's myopic focus on parent-child relationships rather than provider-dependent relationships renders posthumously conceived children unequal along multiple dimensions. They may have not only one provider, but also only one parent. (5) This essay argues that shifting the law's focus away from identifying parents and towards identifying providers would mitigate the status inequality that posthumously conceived children currently experience without (necessarily) altering the allocation of benefits. The Capato case would have had a very different legacy if, instead of determining whether the twins were Robert Capato's "children," (6) the Social Security Administration had simply determined whether they were his "dependents." This proposal fits with recent challenges to traditional notions of parentage. (7)

Part II provides background information. It describes the current law with respect to the parentage of posthumously conceived children and offers a detailed account of Astrue v. Capato. (8) Part III considers the liberty and equality implications of posthumous conception. It addresses the doctrinal as well as practical aspects of liberty and equality and observes that, while prospective parents have substantial liberty to elect posthumous conception, the children they create may experience inequality associated with their status as posthumously conceived--in part, because they may have only one legal parent. Part IV suggests a diminution in the law's focus on parentage. It argues that the law should focus less on parent-child relationships and more on provider-dependent relationships by, for example, eliminating the use of parental status as a proxy for provider status under the Social Security Act. Part V concludes that this shift in focus from parental status to provider status would protect the liberty of adults, promote the equality of children, and perhaps achieve a more just distribution of governmental benefits.

II. …

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