Article on Challenges Facing the Posthumously Conceived Child

Andrew T. Peebles (J.D. Candidate, University of Missouri School of Law, 2015) recently published an article entitled, Challenges and Inconsistencies Facing the Posthumously Conceived Child, 79 Mo. L. Rev. 497-515 (2014).  Provided below is the article’s introduction:

The use of artificial reproductive technology (ART) has increased sharply in recent decades as families plan ahead in the face of such difficulties as disease and military service that raise doubts as to whether reproduction will be possible for an individual in the future.  Posthumous conception of children is a widely used form of ART, and it allows families to expand, even after the death of one of the parents.  In vitro fertilization is the newest form of this technology.  But for the posthumously conceived child, the difficulties continue as most states bar these children from inheriting Social Security survivor’s benefits from a deceased parent.  The Supreme Court of the United States case of Astrue v. Capato ex rel. B.N.C. has recently given authority to this inequality, holding that posthumously conceived children are eligible for such benefits if they qualify as a “child” under state intestacy law. However, the Court’s decision in this case has left several problems unresolved that will continue to plague courts in the future and will lead to further inconsistent decisions and disparities for children born through in vitro fertilization.  Due to the rise in the use of this innovative technology, these issues affect an increasing portion of the population.

This Note will discuss the problems with the Supreme Court of the United States’ decision, the inconsistencies that exist in state intestacy law, and the solutions that are necessary to remedy these challenges.  Part II gives a brief background of the facts and circumstances surrounding Astrue.

Part III discusses the history of the Social Security Administration and in vitro fertilization and points out the conflicting results from various jurisdictions that have dealt with this issue.  Part IV delves into the Supreme Court’s reasoning behind its decision in Astrue.  Finally, Part V comments on the reasons Astrue was poorly decided, the difficulties that will result from the decision, and the methods to resolve these complications.