In vitro fertilization using a deceased father as the donor doesn’t make the children born later eligible for Social Security benefits, the U.S. Court of Appeals for the Second Circuit affirmed Thursday.
The panel of Judges John Walker Jr., Debra Ann Livingston, and Gerard Lynch in MacNeil v. Berryhill, 16-2189-cv, said U.S. District Judge Gary Sharpe of the Northern District of New York got it right when he agreed with an administrative law judge that New York State law precluded children born to a deceased parent—after that parent’s death—from qualifying for Social Security Administration benefits.
The panel acknowledged the unfortunate underlying circumstances in the case. The appellant, Sharon MacNeil, lost her husband of two years, Eric, to cancer. Before his death, Eric banked his sperm. Eleven years after his death, Sharon MacNeil underwent in vitro fertilization using her long-deceased husband’s donation, conceiving and birthing twins in 2008.
Later, when MacNeil sought child’s survivors’ benefits from her deceased husband’s wage earnings, the SSA denied her request. On appeal, both the district and the appellate court agreed.
The SSA’s rules defer to state law when it comes to determining who receives a deceased person’s benefits. New York’s Estates, Powers and Trusts Law has been interpreted to grant children the right to their parent’s benefits only if they were conceived before that parent’s death.
“It is a very long-standing rule of New York law that an estate’s distributees are properly determined as of the time of the decedent’s death,” the panel wrote.
MacNeil challenged this interpretation. She pointed to a relevant subsection of the EPTL, Sec. 4-1.2, which deals with nonmarital issues of paternity. MacNeil argued that since there’s no question of paternity or issues raised specifically about posthumously conceived children, they’re entitled to inherit his benefits.
The panel found her logic flawed. Referring to a previous portion of the same section of state law, it said the SSA’s initial finding was correctly grounded in the relevant details.
“Section 4-1.1(c) deems those children conceived before a decedent’s death but born alive thereafter as having ‘survived’ the decedent,” the panel wrote. “The treatment of other potential distributees born after the death of the decedent is determined by omission: children who did not ‘survive’ the decedent, or are not otherwise deemed by statute to survive the decedent, do not inherit in intestacy.”
MacNeil’s reading of the latter section of the law, if adopted, could open the door to the possibility “an estate might forever remain open or subject to redistribution,” they said. On top of that, the panel wrote in a footnote, the logic of her argument becomes unsustainable when the gender of the deceased parent is reversed.
“Under her reading, a man’s genetic children are entitled to inherit in intestacy no matter how long after the man’s death they are born, whereas no clear statutory mechanism exists in that section that would permit a woman’s genetic children to secure the same entitlement,” the panel stated.
Since the suit was filed, New York has updated the relevant sections of EPTL being reviewed by the appellate panel. The new language directly addresses issues raised about assistive reproductive technology, providing greater clarity going forward for how genetic material can be used to determine inheritance questions. The panel, while forced to rely on the law at the time the suit occurred, found the state’s updated guidelines would have likely resulted in the same SSA determination.
Given the clarity provided by the new state law, the panel also declined MacNeil’s request to certify the question of posthumous intestacy to the New York State Court of Appeals.
Hughes Hubbard & Reed associate Fara Tabatabai represented MacNeil on appeal. The supervisor on the case, partner Hagit Muriel Elul, said the firm was evaluating options in the case.