Metropolitan News-Enterprise


Thursday, June 18, 2009


Page 1


Court Upholds Denial of Benefits to Posthumously-Conceived Child


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld the denial of Social Security survivor benefits to a 10-year old girl conceived using semen taken from a man after he had died.

Affirming the decision of U.S. District Court Judge Cormac J. Carney of the Central District of California, the panel ruled that Brandalynn Vernoff was not a deemed dependent of her biological father as she could not establish a natural parent relationship with him under California law.

Brandalynn’s biological father, Bruce Vernoff, died in an accident in 1995. After his death, his wife directed a physician to extract five vials of his semen. Three years later, she underwent in vitro fertilization using her husband’s sperm and gave birth to Brandalynn.

Claim Denied

Gabriela Vernoff then filed a claim for child survivor benefits with the Social Security Administration on behalf of herself and her daughter, but her claim was denied by the administration and on appeal before an administrative law judge.

While her appeal was pending, the Ninth Circuit decided Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), which held that a set of posthumously-conceived twins were the deemed dependents of their biological father and entitled to survivor benefits.

The administration subsequently issued an “acquiescence ruling” to the decision, noting that in the Ninth Circuit a child must be biologically related to the insured and the insured’s child under applicable state law to be a deemed dependent.

Writing for the appellate court yesterday, Senior Judge Cynthia Holcomb Hall explained that Gillett-Netting was based on Arizona state law, which recognizes “[e]very child [as] the legitimate child of its natural parents,” but that California law does not equate natural parent status with biological parenthood.

Biological Relationship

She emphasized that neither the California Family Code nor family law decisions require a biological relationship between a father and child for that man to be the child’s natural parent, citing provisions which exclude rapists and sperm donors from status as a natural father.

Hall reasoned that Gabriella Vernoff would have been unlikely to prevail in any court action to establish paternity in light of Sec. 7613(a)—which allows a husband to be treated as the natural father following artificial insemination of his wife if he specifically consents to the procedure—and Gillett-Netting—which involved a mother who was able to provide evidence that the father intended to create and support a child conceived with his biological gamete.

Natural Father

As Vernoff could not establish that her husband qualified as Brandalynn’s natural father under any California Family Code provision, Hall wrote, the child did not fall under the rule of Gillett-Netting and the subsequent acquiescence ruling.

Additionally, because Brandalynn was not actually dependent on Bruce Vernoff at the time of his death, having not yet been conceived, and because the child was unable to inherit from his estate pursuant to California intestacy law absent a natural parent relationship, Hall concluded Brandalynn was not entitled to survivor benefits.

Joined by Judges Andrew J. Kleinfeld, and Barry G. Silverman, Hall also rejected Vernoff’s argument that excluding only those posthumously-conceived children who did not meet the applicable state law requirements for establishing a natural parent relationship violated equal protection as the challenged classifications are reasonably related to the government’s interests in limiting benefits to those children who have lost a parent’s support and in minimizing the administrative burden of proving dependency on a case-by-case basis.

James T. Raetz and Wallace R. Vernoff of Pasadena’s Coulter Vernoff & Pearson represented Vernoff while Kelsi Brown Corkran of the Justice Department’s Civil Division represented the Social Security Administration.

The case is Vernoff v. Astrue, 08-55049.


Copyright 2009, Metropolitan News Company