In a case that illustrates how technology advances more quickly than the law, a federal appeals court has ruled that children born as a result of in vitro fertilization long after their father has died cannot be denied Social Security survivor benefits solely because they would not be entitled to inherit under state law.

“It goes without saying that these technologies were not within the imagination, much less the contemplation, of Congress when the relevant sections of the act came to be, and that they present a host of difficult legal and even moral questions,” U.S. Circuit Judge Maryanne Trump Barry said in Capato v. Commissioner of Social Security .

But Barry found there was no need to reach many of the more vexing questions in the appeal brought by Karen Capato because there was no dispute that the twins she gave birth to in September 2003 were the children of her late husband, Robert, who had died in March 2002.

Robert Capato was diagnosed with esophageal cancer in 1999, soon after the couple married, and was warned that his treatment could leave him sterile.

As a result, before he began chemotherapy, Capato deposited his semen in a sperm bank, where it was frozen and stored.

The couple conceived naturally and had a son in August 2001. But Karen Capato said she decided to pursue in vitro fertilization after her husband’s death because the couple had wanted their son to have a sibling.

When she applied for surviving child’s benefits on behalf of the twins, the Social Security Administration denied the claim, and an administrative law judge later upheld the denial, ruling that children conceived after the death of their father are not “children” of the deceased wage earner for purposes of the Social Security Act.

U.S. District Judge Dennis M. Cavanaugh of the District of New Jersey also upheld the denial of benefits after finding that Robert Capato had died intestate in Florida, and that the twins would not be entitled to inherit under that state’s law.

On appeal, Karen Capato’s lawyer, Bernard A. Kuttner of Millburn, N.J., argued that the denial of benefits was an equal protection violation because the Social Security Administration routinely grants benefits to posthumously conceived children as a result of a 2004 ruling by the 9th U.S. Circuit Court of Appeals.

But government lawyers argued that the 9th Circuit’s decision in Gillett-Netting v. Barnhart was limited to that circuit because it was the first circuit to address the question and a nationwide change in policy would effectively allow a single circuit to set government policy without allowing other courts to weigh in.

Now the 3rd Circuit has rejected the equal protection argument, but it also found that the 9th Circuit was correct in holding that posthumously conceived children may meet the statute’s definition of “child.”

Barry found that the ALJ and Cavanaugh had erred by looking too deep into the statute.

The only reason to apply the state intestacy law test in Section 416(h), Barry found, is if the child does not meet the simpler definition set out in Section 416(e).

“The term ‘child’ in Section 416(e) requires no further definition when all parties agree that the applicants here are the biological offspring of the Capatos,” Barry wrote in an opinion joined by Judges Michael A. Chagares and Thomas I. Vanaskie.

“Why should we, much less why must we, refer to Section 416(h) when Section 416(e) is so clear, and where we have before us the undisputed biological children of a deceased wage earner and his widow?” Barry wrote.

Government lawyers urged the 3rd Circuit not to follow the 9th Circuit, arguing that its reasoning was simplistic and ignored the potential complexities created by new technologies.

“Modern artificial reproduction technologies currently allow for variations in the creation of child-parent relationships which are not solely dependent upon biology,” Justice Department attorney Kelsi B. Corkran wrote in her brief.

“The use of donor eggs, artificial insemination, and surrogate wombs could result in at least five potential parents. Accordingly, even in modern times, the basic assumption underlying the Gillett-Netting panel’s reasoning — i.e., that biological paternity always results in an ‘undisputed’ child-parent relationship — is unfounded,” Corkran wrote.

But Barry rejected the argument, finding that it introduced difficult questions that were not presented in Capato’s case.

“What is before us,” Barry said, “is a discrete set of circumstances and the narrow question posed by those circumstances: Are the undisputed biological children of a deceased wage earner and his widow ‘children’ within the meaning of the act? The answer is a resounding ‘Yes.’”

On remand, Barry said, Cavanaugh must address the issue of whether, as of the date of Robert Capato’s death, his children were “dependent or deemed dependent on him.”

Neither Kuttner nor Corkran could be reached for comment on the ruling.

(Copies of the 11-page opinion in Capato v. Commissioner of Social Security , PICS No. 11-0041, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) •