The patchwork of state laws sitting at the intersection of technology and society led a federal judge to make a direct appeal to Congress for an amendment to the Social Security Act that would address the new reality that a person can parent a child posthumously through medical technology and unify the distribution of survivor benefits to his or her children across the country.

As it stands now, children who were conceived in vitro after the death of a parent can collect benefits only if they qualify for them under the intestacy laws of the state in which the parent died, the U.S. Supreme Court decided in a case that it remanded to the U.S. Court of Appeals for the Third Circuit last year. Courts of appeals have split on the issue.

On remand, the Third Circuit ruled Wednesday that twins born 18 months after the death of their father in Florida would not be eligible to collect Social Security survivor benefits. That ruling is a reversal of what the same three-judge panel of the court had ruled in its initial opinion in 2011.

"The results we reach in this case — that there is substantial evidence supporting the determination that Nick Capato was domiciled in Florida at the time of his passing, and that, as a consequence of this determination, the children of Nick and Karen Capato conceived after his passing are not entitled to Social Security survivor's benefits — are correct legally, and so I must concur," Third Circuit Judge Thomas Vanaskie said in his opinion concurring with Senior Judge Maryanne Trump Barry, who wrote the 2011 opinion, and Judge Michael Chagares, who wrote this week's opinion. "But the denial of survivor's benefits to Nick and Karen Capato's twins strikes me as grossly unfair," Vanaskie said.

In 2003, about nine months after the death of her husband, Karen Capato became pregnant with twins through in vitro fertilization of the sperm that Robert Nicholas Capato had frozen before undergoing intense chemotherapy for esophageal cancer. He had been told that the treatment could leave him sterile and the newlywed couple wanted children, according to court papers.

When Karen Capato, who had moved from Florida to New Jersey, made a claim for survivors' insurance benefits for the twins, the Social Security Administration denied her application and the U.S. District Court for the District of New Jersey upheld that decision.

On the case's first appearance in the Third Circuit in 2011, the appeals court reversed the district court and held that the simple definition of the term "child" in the Social Security Act would entitle the undisputedly biological offspring of Nick Capato to benefits.

However, the U.S. Supreme Court agreed with the Social Security Administration's reading of two key provisions in the statute as limiting benefits to children only if they would qualify for inheritance under the intestacy laws of the state in which their parent died.

Courts of appeals have split on the proper reading of the law and the U.S. Supreme Court applied Chevron deference, so named for its 1984 decision in Chevron v. Natural Resources Defense Council, when it decided to defer to state agencies for statutory interpretation.

"We conclude that the SSA's reading is better attuned to the statute's text and its design to benefit primarily those supported by the deceased wage earner in his or her lifetime. And even if the SSA's longstanding interpretation is not the only reasonable one, it is at least a permissible construction that garners the court's respect under Chevron," Justice Ruth Bader Ginsburg wrote in the high court's opinion.

On remand, the Third Circuit complied.

It held that Nick Capato had lived in Florida when he died, so the law of that state would apply. Florida law states clearly that a "child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman's body shall not be eligible for a claim against the decedent's estate unless the child has been provided for by the decedent's will," according to the opinion.

Under that law, the Third Circuit affirmed the district court's initial ruling that the twins couldn't collect.

"The manifest unfairness of this case is the unfortunate consequence of legislation that was enacted generations before scientific and technological advances made it possible for couples like the Capatos to provide for a family even in the tragic circumstance of a death-sentence diagnosis of the wage earner," Vanaskie wrote of the 1939 law enacted by Congress to provide survivor benefits to the children of wage earners.

"Only Congress has the authority to remedy this situation," he said. "I write separately in this case to urge that Congress take appropriate action now to correct the injustice resulting from application of legislative provisions that could not have contemplated this 'new world' in which a father or mother may provide for a family even after his or her death."

Paul Hughes of Mayer Brown in Washington, D.C., represented Karen Capato and saw Vanaskie's concurrence as "a powerful sign," although the outcome as a whole was "disappointing," he said.

The firm is reviewing its options with Capato, he said.

Helen Gilbert of the U.S. Department of Justice argued on behalf of the government. The DOJ didn't immediately return a call for comment.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the nine-page opinion in Capato v. Social Security, PICS No. 13-2220, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)