Weird legal question

[MountainLaurel]

An episode of Law & Order had me thinking about something. Bear with me, it's a long one.

The episode reminded me of a court case in which the sperm of a man killed in an accident was removed so that his wife could use it for in vitro fertilization. The court case involved some dispute between the wife and the deceased's parents.

But anyway, if a child were to be conceived in such a circumstance, would he/she be eligible to receive Social Security death benefits or even VA benefits as the minor child of the deceased, even if the child wasn't born or even conceived prior to the father's death?

Thanks in advance for any clues you can provide.

And yeah, I'm being real productive at work today.

[whistle]

1. Great question, maybe you can post the same question on

...a freeper blog and compare responses.

Now, my thought to this would be that if the husband survived long enough (not brain or heart dead for the doctor(s) to remove the sperm and perform the "in vitro fertilization" on the wife's own eggs, then the case for the child would be legally strong for social security entitlement beginning at birth and throughout the child's dependency I suppose through college and until he/she could be self-supporting.

Now, that would not have been likely although I have to believe that the sperm had to be extracted very quickly from the husband while the sperm cells were still alive. I am not a medical expert, but doesn't the body release certain enzymes and chemicals fairly quickly following death that begin the decomposition process? Also, I thought that sperm cells are highly volatile and sensitive and are easily killed in hostile environments.

The freezing and preserving of the sperm immediately after death, if contained in a living will might stand up in court. But this sounds like it might not be known if this was the husband's desire. Very complicated, a lawyer's dream.

[AllegroRondo]

3. Is the husband's consent necessary?

or is the fact that they are married enough to qualify as consent?

[whistle]

4. I donno, I suppose if this was a situation like the Terri Schiavo...

...case, but involving a brain dead husband, perhaps the wife could have the sperm extracted, frozen and then use at a later time. That might give sufficient time for the legal process to allow consideration.

But, from the OP I get the impression that this whole thing took place very quickly and under exceptional circumstances, like a tragic accident where the husband was severely and mortally hurt, perhaps barely arriving at the ER and pronounced DOA. Then the wife says under intense grief in front of witnesses, "...we were planning on having a child, now he's gone, what will I do", and so on and the doctor on duty offers to do the sperm extraction, the wife consents, the sperm is removed, frozen and preserved. Now the wife thinks, if I decide to got through with this, what kind of assistance is available from Social Security.

One thing for sure about this scenario. Under the present system of Social Security Insurance Benefits to dependent children, the unborn child is guaranteed social security benefits. Under a privatized program, that would almost be guaranteed never to be available without costly premiums.

[BornaDem]

2. I believe there was a court ruling a couple of years ago...

that the child conceived after the death of the father was eligible for SS benefits. I don't remember what the circumstances were (frozen semen, obtained before plug was pulled, etc.) and I do not know about any other benefit rulings.

[whistle]

5. Well, perhaps there is a link on this story on the internet.

[rebecca_herman]

6. I remember some court case

... involving twins born through in vitro fertilization with their dead father's frozen sperm. I think they got benefits but I can't remember for sure.

[ultraist]

7. "Dead Dad's benefits awarded to test tube twins"

http://sfgate.com/cgi-bin/article.cgi%3Ffile=/c/a/2004/06/10/MNGRA73M351.DTL
Dead dad's benefits awarded to test tube twins
Ruling helps bring law up to date with high-tech births

Observing that the law has not kept up with reproductive technology, a federal appeals court ruled Wednesday that two children who were conceived by in vitro fertilization using their dead father's sperm are entitled.

The Ninth U.S. Circuit Court of Appeals in San Francisco overruled the Social Security Administration and a federal judge and ordered benefits paid to 7-year-old twins in Tucson who were born 16 months after their father died of cancer. The ruling, the first by a federal appeals court on the issue, applies to California and other states in the court's jurisdiction that have similar parentage laws.

Robert Netting, a professor at the University of Arizona, was diagnosed with multiple myeloma in December 1994. He delayed chemotherapy for several days to deposit his semen in a sperm bank for use by his wife, Rhonda Gillett- Netting, who had miscarried twice while trying to have children.

Netting died in February 1995; in vitro fertilization was performed 10 months later, and Gillett-Netting gave birth to the twins, Juliet and Piers, in August 1996. She sought benefits for them based on her husband's earnings, but Social Security officials ruled that the twins were not Netting's dependents at the time of his death. A federal judge agreed.

[MountainLaurel]

8. Thanks!

How very interesting. The law in many ways is years behind reproductive technology, mainly because of the efforts of the Religious Reich back in the 70s and 80s to derail IVF research. There was no regulation or rules put in place to guide such efforts, as researchers were trying to stay under the radar or nutballs screaming about sacred sperm. (Interesting aside from a book I recently read: Maria Shriver (now the Gropenator's wife) led a protest with her Catholic high school classmates at NIH back in the 1970s over IVF research.)