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Court rules in vitro children not entitled to Social Security benefits

The Law Office of Jeffrey L. Weinstein

The United States District Court for the Northern District of New York has upheld a Social Security Administration (SSA) decision that children born after the death of their father are not entitled to Social Security survivor benefits. The Court affirmed the agency’s decision, ruling that under the provisions of New York’s Estates, Powers and Trusts Law (“EPTL”) the children were not entitled to inherit under New York law.

Sharon MacNeil filed suit challenging a decision by the Commissioner of the Social Security Administration that her children, twins conceived via in vitro fertilization eleven years after her husband died, were ineligible for survivors’ insurance benefits.

According to court documents,

Sharon and Eric MacNeil were married on October 1, 1994, a year after they graduated from college. Several months into their marriage, Eric was diagnosed with non-Hodgkin’s lymphoma at the age of 23. The couple, knowing that the cancer might be terminal or that treatment might render Eric sterile, decided to bank Eric’s sperm. Eric died intestate on May 24, 1996, at age 24. In June 2007, eleven years after Eric’s death, Sharon underwent in vitro fertilization using the stored sperm. She gave birth to twins, A.T.M. and C.E.M., on February 14, 2008.

In 2009, MacNeil filed for child survivors’ benefits for her twins with the SSA, based upon the wage earnings of their deceased father. The SSA denied them. MacNeil then sought a hearing before an Administrative Law judge. (ALJ) The only question presented before the ALJ was a legal one, whether the twins qualified as “children” under the Social Security Act. The ALJ concluded that, although the kids were biologically Eric MacNeil’s, they were not entitled to inherit under the applicable provisions of New York intestacy law because they were conceived after Eric’s death.

The court wrote

Section 4-1.1(c) deems those children conceived before a decedent’s death but born alive thereafter as having “survived” the decedent, enabling these individuals to take by operation of Section 4-1.1(a). The treatment of other potential distributees born after the death of the decedent is determined by omission: children who did not “survive” the decedent, or are not otherwise deemed by statute to survive the decedent, do not inherit in intestacy.

So, in other words, the rule is, if the children were conceived while the father was alive and were born after he died, they would be entitled to the survivor benefits. Since they were conceived and born after the father died, in this case 11 years after, they aren’t entitled to the benefits.

So, the court concluded, “… we can only apply the law as it was written, and under the law as written it is clear that Congress has not provided benefits for children in the category of the MacNeil twins.

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