Metropolitan News-Enterprise


Thursday, June 10, 2004


Page 3


Ninth Circuit Rules Children Conceived After Father’s Death  Meet Qualifications for Social Security Benefits


By a MetNews Staff Writer


Children conceived after their father’s death are legitimate offspring under Arizona law and need not establish dependency to qualify for social security benefits, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court reversed a summary judgment in favor of the commissioner of social security by U.S. District Judge John M. Roll of the District of Arizona. Roll agreed with federal officials that Rhonda Gillett-Netting had to show her two children, Juliet and Piers, were dependant on their father at the time he died to qualify them for benefits.

The children were conceived by in vitro fertilization using sperm that Gillett-Netting’s husband deposited before his death from cancer.

Senior Judge Betty B. Fletcher said Roll erred in applying provisions of social security law intended to be used when parents were unmarried or parentage was in dispute.

“Developing reproductive technology has outpaced federal and state laws, which currently do not address directly the legal issues created by posthumous conception,” Fletcher wrote. “Neither the Social Security Act nor the Arizona family law that is relevant to determining whether Juliet and Piers have a right to child’s insurance benefits makes clear the rights of children conceived posthumously.”

Since is was undisputed that the two children were the biological offspring of Gillett-Netting and her late husband, the provisions Roll and the commissioner relied on were inapplicable, Fletcher explained.

“We conclude that these provisions do not come into play for the purposes of determining whether a claimant is the ‘child’ of a deceased wage earner unless parentage is disputed,” she said.

Roll was correct in finding that the children could not establish they were actually dependent on their father at the time he died, since they had yet to be conceived, Fletcher conceded. But she said no such showing was required.

“[T]he Act statutorily deems broad categories of children to have been dependent on a deceased, insured parent without demonstrating actual dependency,” Fletcher declared. “It is well-settled that all legitimate children automatically are considered to have been dependent on the insured individual, absent narrow circumstances not present in this case.”

Since Arizona, where the mother and children live, has abolished all distinctions based on legitimacy, the children were entitled to the benefit of the statutory presumption, the judge reasoned.

“Although Arizona law does not deal specifically with posthumously conceived

children, every child in Arizona, which necessarily includes Juliet and Piers, is the legitimate child of her or his natural parents,” Fletcher wrote.

Judge Stephen Reinhardt and Chief Judge Jane A. Restani of the U.S. Court of International Trade, sitting by designation, concurred.

The case is Gillett-Netting v. Barnhart, 03-15442.


Copyright 2004, Metropolitan News Company