Late Fathers\u27 Later Children: Reconceiving the Limits of Survivor\u27s Benefits in Response to Death-Defying Reproductive Technology

Abstract

When Congress instructed the Social Security Administration to begin paying a social insurance benefit to widows and orphans in the 1930s, it simplified the process of determining an applicant\u27s relationship to an insured decedent in two significant ways: First, Congress ordered the agency to honor the intestate laws of each state when determining whether an applicant was actually the child of a decedent, and second, it ordered the agency to treat any child who could qualify as an intestate heir as if that child actually depended on the parent financially at the time of the parent\u27s death. Three-quarters of a century later, advances in reproductive technology make it possible for a child to be born decades after the death of one or both of her genetic parents. As the law begins to explore the rights and responsibilities of the parents who choose postmortem reproduction and the children whose lives come into being through those procedures, the heuristics that facilitated efficiency in the 1930s may yield unintended consequences. This Note explores some of those consequences and suggests minor alterations to the rules governing survivor\u27s-benefits eligibility intended to preserve the program\u27s social insurance function as reproductive technology transforms life after death from a hope or a fear into a choice

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